23 July 2014

Solving The ACA Religious Employer Problem

How can one resolve the Gordian knot of employers with religious objections to ACA mandated health insurance that are imposed on employees who receive group health insurance from an employer, now that the Hobby Lobby case has held that at least closely held companies can invoke religious exemptions to the ACA coverage mandates.

One of the cleanest approaches borrows a trick from education funding.  Public entities must not advance religious positions.  But, public entities are allowed to give content neutral scholarships and/or vouchers that can be used by individual students or their parents at either religious or non-religious educational institutions.  A mere provision of money controlled by an individual does not offend any legitimate interest of either the provider or the person receiving it.

How does this apply to the ACA?

Any employer could be allowed to opt out of the requirement to provide group health insurance if they instead provide equivalent vouchers for employees to spend on buying individual or family plan health insurance on an exchange and/or funding health savings accounts to pay for co-pays and deductibles.  But, employers who opt to provide group health insurance would not be allowed to opt out of the contraceptive mandate or any of the other mandated benefits of ACA compliant group health insurance plans.  Individuals on the exchanges could purchase plans that opt out of one or more kinds of coverage based upon religious objections - Seventh Day Adventists could buy insurance that doesn't cover blood transfusions, devout Roman Catholics and pro-life Evangelicals could opt out of contraception coverage, and so on, but they couldn't impose their views on others and would have to find an insurer willing to offer compliant coverage or pay the individual mandate penalty.

Hobby Lobby itself tends to enforce a neo-feudalist approach in which the local lord makes decisions on religious conviction for all of his subjects.  In contrast, this solution (which might even be possible on a regulatory basis) reduces to neo-feudal power of employers over their employees on matters of faith, a far better approach in a religiously pluralistic society, that still minimized the amount of health care provided directly by an employer.

22 July 2014

Manifest Misconduct and Mismanagement

It isn't uncommon for a court case to reveal serious misconduct or mismanagement that is beyond the scope of the current litigation and therefore doesn't give the party suing a right to relief.

For example, a recent 7th Circuit case involving sex discrimination at a state prison in Indiana, revealed a rampant lack of discipline among the staff to the point that night shift workers were having sex on the Plaintiffs desk almost every night.  This was widely known and the supervisor expressly said that he didn't care and that she should just wash her desk off each morning.

The Court held that this didn't constitute sexual harassment because night shift workers only had sex there because it was convenient, and not because she was a woman, and further held that she had no retaliation claim because her complaint was not about gender related harassment, but merely run of the mill, not federally regulated harassment.

There is room to disagree with that conclusion, but the screaming and yelling obvious point revealed by evidence like this in her case, for which she personally wasn't allowed to sue in federal court, is that the management of the prison under both the current and previous warden was absolutely egregious.

This should, but all too often does not, have serious consequences.  The facts that came to light should cause every single manager on the day shift and night shift, and everyone who was involved in carrying out the harassment at that prison, to be fired in a matter of days.  If the staff at the prison cannot maintain some minimal degree of professionalism at work, then there is no way that anyone can reasonably expect that they are fulfilling their other professional duties in a reasonable manner.

Once upon a time, grand juries were convened when this sort of scandal was revealed to investigate the mismanagement of a public institution, but now, that doesn't seem to happen.

Indeed, this case also reveals an all to common divide and conquer litigation tactic.  The core sex discrimination in this case involved a slap on the wrist punishment for a male employee with seniority and higher rank who was involved in an affair, while she lost her pension, had a difficult time obtaining unemployment benefits and lost any hope of working for the state again.

In other contexts, it is common for a defendant to settle with someone who has the greatest capacity to litigate a wrongdoers misconduct, while the settlement leaves obvious harm to other similarly situated people as a result of the same pattern and practice of conduct who have less of a capacity to litigate without relief.  Similarly, even if multiple people violate the law in ways that give rise to legal liability, private litigators frequently satisfice, litigating until enough big pockets have paid enough in damages, even if that means that there are no consequences for equally guilty offenders who pose a continuing threat to the general public.

In a world where harms were mostly isolated incidents, this wouldn't be a serious problem.  But, in a world in which systemic conduct by big businesses, government agencies, and even not so big businesses that interact with many customers or vendors are the norm, as often as not, misconduct directed at one person or one employee is part of a pervasive pattern of misconduct that impacts many people.

For example, even if a contract term if found to be void as against public policy in a court case, it is rarely actionable for a firm to continuing using the same form contract in the hope of strengthening their negotiating position in future disputes with people who don't know that this happened.

In a better world, when a litigated case reveals something rotten, that information should be shared widely and have consequences.  All too often, however, this is artfully avoided.  Class action lawsuits were meant to address this kind of problem, but have not been very effective.  Routinizing other collateral consequences of misconduct and mismanagement that are revealed in a case should be one objective in reforming our civil litigation system.

16 July 2014

California's Death Penalty Held Unconstitutional

California has sentenced 900 people to death since 1978 when it reintroduced the death penalty, but has executed just 13, the last in 2006.  Seven people have died of other causes while on death row for each person who was executed.  The appellate process takes twenty-five years on average (twice the national average), in addition to the often lengthy process of convicting someone of the death penalty in the first place.

A federal judge held today that the entire process is unconstitutional because the ultimate reality that chooses which unlucky few people will be executed and who will not is so arbitrary and capricious that it violates the 8th Amendment prohibition against cruel and unusual punishment.

If the ruling sticks is will remove 742 people from death row, more than any court ruling in the history of the United States other than the ruling of the U.S. Supreme Court in 1972 that temporarily ended the death penalty in the United States.  Nationwide there are 3,070 inmates in the United States who have been sentenced to death and have not had those sentences reversed on appeal.  Almost a quarter of them could potentially have death sentences converted into life in prison by this ruling.

An appeal, if the State of California chooses to pursue it, would be to the United States Court of Appeals for 9th Circuit (arguably the most liberal federal appeals court in the country on death penalty issues), and then to the U.S. Supreme Court.  The state attorney general could, however, simply decline to appeal the case and end the death penalty in California, as was done in the case of Proposition 8, a plausible result giving the officials who hold those offices.  Kamala Harris, the attorney general, is a leading opponent of capital punishment and Governor Brown isn't a strong supporter of it either.  A 2012 referendum to abolish the death penalty in California narrowly failed with 48% of voters supporting the measure.

Military Justice, Isn't.

It is an embarrassment  to be a citizen of a country, like the United States that conducts the kinds of kangaroo court proceedings that the United States military is conducting at Guantanamo Bay.

There, military tribunals issue orders that prosecutors and judges can see, but defense counsel and the defendants are not allowed to see.  This is a fundamental miscarriage of anything remotely resembling due process, and it is fundamentally at odds with the principles upon which our nation was founded.

It is clear that the truth of the matter is that the U.S. is covering up an illegal policy of intentional torture, while seeking to use information obtained through torture in legal proceedings.  The defies all domestic and international standards of justice and deprives proceedings meant to bring terrorists to justice of all legitimacy.

President Obama, as a former constitutional law professor, with whom the buck stops as commander in chief of every members of the United States military involved in these military tribunals, owes our constitution and our nation's reputation for fairness and justice, more respect.

People Under 65 Don't Vote Their Pocketbooks

Voters aged 65 and older who believe they are net beneficiaries of federal spending are more likely to be Democrats and vote for Barack Obama than seniors who believe they are net contributors to the federal government. However, the 77.5 percent of voters under age 65 who believe they are net beneficiaries of federal spending are as likely to vote for Romney as for Obama and as likely to be Republicans as Democrats. Voters who live in states that receive more in federal funds than they pay in federal taxes are less likely to vote for Obama or to be Democrats. For most of the electorate, dependence on federal spending is unrelated to vote choice.
Thus, there is no meaningful correlation between perceived net benefit from the federal government, for voters under the age of sixty-five, and partisan affiliation. Moreover, actual net benefit from the federal government is weakly correlated with a tendency to vote Republican.

While people to engage in referendum voting, ousting the party in power during weak economies, social issues, rather than economic ones, seem to be the driving determiners of political identity.

An alternative explanation is that people misperceive whether or not they are net contributors to the federal government or not,  in response to surveys.  But, this is not very politically salient to most voters because the magnitude of the net contribution or net benefit is so modest either way for them.
Meanwhile, the number of people whose net contribution is really economically significant enough for it to be really salient to voting decisions is so small that personal self-interest is statistically unimportant.  In other words, if only 1%-5% of the population are net contributors in way great enough to be politically salient, the fact that they vote their pocketbooks is usually irrelevant to electoral outcomes.  Their power comes from campaign contributions that influence the masses on terms relevant to those masses, not from the clout of their own voting block.

14 July 2014

7th Circuit Rules That Humanist Officiants Can Solemnize Marriages

The 7th Circuit Court of Appeals has ruled that an Indiana law prohibiting secular humanist officiants from solemnizing marriages, while allowing clergy, and in certain faiths, non-clergy, as well as mayors and other government officials, but not notaries of non-religious cultural marriage officiants or the couple themselves, to solemnize marriages violates the First Amendment establishment clause.

As a remedy, the 7th Circuit ordered that secular humanist officiants be allowed to solemnize marriages. The opinion by Judge Easterbrook is eminently presaged by other precedents, but is a step forward for non-theists of all stripes who have organized cultural institutions.  It would have been easy to rule that the fact that there were secular options was good enough, but Judge Easterbrook's opinion makes clear that this was not sufficient.

09 July 2014

Colorado's Gay Marriage Ban Ruled Unconstitutional By Adams County Judge

Adams County District Court Judge Crabtree issued a ruling today holding that Colorado's gay marriage ban is unconstitutional, denying any money damages claim against Governor Hickenlooper, and staying his ruling pending an appeal to the Colorado Supreme Court.

Court rulings declaring a law to be unconstitutional skip the Colorado Court of Appeals in the appellate process and advance directly to the Colorado Supreme Court.  Colorado Attorney General Suthers intends to appeal the ruling, despite the fact that Governor Hickenlooper, in a separate brief, expressed doubts about the constitutionality of Colorado's gay marriage ban.  The ban was enacted by the Colorado General Assembly in the year 2000, and was made a part of Colorado's state constitution in 2006.

The core conclusion of the ruling is that the Colorado's Attorney General's argument that there is a compelling governmental interest in encouraging procreation and providing parenting for children by their biological parents was an after the fact pretext that was not important in the passage of either the law, or in the state constitutional amendment.  He also noted that Colorado's marriage laws are not closely tailored to this purportedly compelling governmental interest, allowing marriage in many cases where the couple cannot or does not wish to have children (and although the Court does not really address it, doing little to discourage extramarital child bearing).

Instead, the ruling concluded that the principle reason for the ban was to uphold tradition, which standing alone, which precedent clearly holds is a legally insufficient reason for denying someone a fundamental right to marry that has been recognized in a broad variety of other contexts, and a fundamental right for people who are married (perhaps elsewhere) to remain married.

The Court also concluded that the availability of civil unions in Colorado, which provide marriage-like rights to couples entering into them under state law, are not an adequate substitute for marriage, because they do not confer upon couples the rights of married couples under federal law.  Thus, this is a second class institution that is not an adequate substitute for marriage.

Following the lead of many other judges in similar cases, the ruling is stayed while appeals are pending.

Unless the U.S. Supreme Court overruled the 10th Circuit and/or other state and federal court rulings holding that gay marriage bans are not unconstitutional, four factors will probably lead the Colorado Supreme Court to uphold this ruling on appeal:

* The U.S. Supreme Court ruling in Windsor striking down the federal component of the Defense of Marriage Act, Lawrence, holding that criminalizing consensual sodomy involving consenting adults is unconstitutional, and Romer holding that a state initiative in Colorado prohibiting local governments from passing gay friendly laws was unconstitutional, have created a body of precedent whose logical conclusion is to hold that gay marriage bans by states are unconstitutional.

* There have been a large unbroken string of rulings holding that gay marriage bans are unconstitutional across the nation.

* The ideological makeup of the Colorado Supreme Court (probably best characterized as having 4 liberals, 1 moderate, and 2 conservatives), is liberal leaning.

*  The United States Court of Appeals for the 10th Circuit has struck down a gay marriage ban in Utah and will probably strike down a similar ban in Oklahoma where the judges on the Court of Appeals panel are the same and the facts are essentially identical, before the Colorado Supreme Court has a chance to rule on the issue.

There is also a question of timing.  The incumbent Colorado Attorney General, a Republican, is term limited.  His successor will be elected in four months and will take office in six months.

If that successor in the open race for Colorado Attorney General in this November's general election is Democrat Don Quick, he will is likely to reverse the course taken by our incumbent Attorney General and abandon an any appeal of this ruling, or urge the Colorado Supreme Court to affirm the ruling if someone else is allowed to argue in favor of upholding the law on appeal.

In contrast, if Republican Attorney General nominee Cynthia Coffman wins in November, she will likely stay the course set by her predecessor.

UPDATE July 10, 2014:  The Attorney General's effort to enjoin the Boulder Clerk's issuance of same sex marriage licences has failed on the grounds that repairable injury was not shown, despite the fact that it violates current state law since relevant court ruling have been stayed in this ruling.  This ruling also recounts all of the cases holding same sex marriage bans unconstitutional in an unbroken streak in a footnote.  The State of Utah has forgone en banc review in the 10th Circuit and is instead directly seeking U.S. Supreme Court review.  Denver's Clerk and Recorder has also begun to issue same sex marriage licenses.

UPDATE July 14, 2014: The Pueblo County Clerk has followed the lead of Denver and Boulder on this issue. Governor Hickenlooper has asked the Attorney General to drop the appeals (although he doesn't have the authority to order him to do so). Governor Hickenlooper said:
I have urged the attorney general not to appeal Judge Crabtree’s ruling. If he feels he needs to continue to defend this discriminatory law, I urge him to seek final resolution at the Colorado Supreme Court.
Cynthia Coffman, the Chief Deputy AG under Colorado Attorney General Suthers and Republican nominee for the post, favors continued appeals; Don Quick, the Democratic candidate for the Colorado Attorney General's office, would drop appeals of the District Court ruling.

UPDATE July 15, 2014: The 10th Circuit stay of its Utah gay marriage decision will expire at 8 a.m. on July 21, 2014 unless the U.S. Supreme Court intervenes, which is not automatic. According to the Desert News (a leading Salt Lake City newspaper):
The state's petition for a stay would be directed to Justice Sonia Sotomayor, who oversees the six states that make up the 10th Circuit. Sotomayor put the brakes on same-sex marriage in Utah last December with an order that appeared to have support of all nine justices because there were no dissenting votes. But that doesn't necessarily mean the court would intervene in the marriage recognition case, Evans v. Utah.
Colorado Attorney General Suthers, meanwhile, has asked the Colorado Supreme Court to order the Boulder County Clerk and Record to stop issuing same sex marriage licenses until an appeal of Judge Crabtree's ruling is resolved, something that a District Court Judge in Boulder County refused to do.

This will be the first time that the Colorado Supreme Court will have had to address the gay marriage issue, although the issue presented directly will be a procedural one.  Note that any decision of the Colorado Supreme Court, affirming or reversing Judge Crabtree's ruling must necessarily be based on the United States Constitution, because the gay marriage ban is part of the constitution of the State of Colorado.

UPDATE July 18, 2014: This afternoon, U.S. Supreme Court extended the stay of the Utah ruling which the 10th Circuit would have let expire on Monday morning.  Also this afternoon, the Colorado Supreme Court ordered clerks in Denver and Adams County not to issue same sex marriage licenses pending any appeal of the Adams County District Court ruling striking down Colorado's gay marriage (the decisions is not directly applicable to the clerks in Boulder and Pueblo counties who are also issuing same sex marriage licenses at this time).  Finally, unsurprisingly, the 10th Circuit panel that found a gay marriage ban unconstitutional in Utah came to the same conclusion by the same 2-1 margin today in a case from Oklahoma.

Recall that Utah's attorney general has already announced that the 10th Circuit ruling on gay marriage will be appealed directly to the U.S. Supreme Court without seeking en banc review in the 10th Circuit.

This afternoon's stays of lower court decisions pending appeals in the U.S. Supreme Court and Colorado Supreme Court are arguably merely questions of preserving the status quo pending appeal.  But, the U.S. Supreme Court stay does suggest that the U.S. Supreme Court is likely to take up the issue. 

These 10th Circuit rulings and the apparent pending U.S. Supreme Court review of one or more of the 10th Circuit decisions on gay marriage, is also pertinent to the Colorado Supreme Court.  Because Colorado's state constitution prohibits gay marriage, any judicial action ending a gay marriage ban in Colorado must rely solely on federal law with regard to which the U.S. Supreme Court and 10th Circuit's rulings are precedents on these issues of federal law that are applicable to Colorado.

In contrast, in states where a gay marriage ban is not part of the state constitution, a state court ruling that a ban is unconstitutional under a state constitutional provision, even one identical in language to the federal constitution, cannot be reversed by the U.S. Supreme Court.

Gay marriage supporters want as much of a consensus as possible in the lower courts that gay marriage bans are unconstitutional before the U.S. Supreme Court weighs in on the matter.  Right now, there is not a genuine split of authority on the issue.  The U.S. Supreme Court is generally inclined not to reverse unanimous holdings of large numbers of lower courts on the same issue, even though it has the authority to do so and sometimes exercises that authority.

06 July 2014


Many people have been executed for witchcraft.

One of the more notable, whose legend spawned an opera after which in turn an ill fated World War II ship was named, was Sidonia von Borcke, a litigious Pomeranian* noblewoman who never married and lost most of her family young.  She and a former employee of the Lutheran Abby where where lived in her later years where she served as a sub-prioress, was executed at the age of seventy-two in 1620 after many nobles who had arguably persecuted her died mysteriously.  The former employee and then she confessed to murder by sorcery while being tortured.  A thousand pages of the trial record remains available as a historical document.

* Pomerania means land by the sea and refers to a principality on the South Coast of the Baltic Sea, much of which is now part of Poland.

01 July 2014

ISIS aka ISIL declares itself a sovereign caliphate

The map, via the Reference Frame blog, shows in dark red the area controlled by ISIS aka ISIL, the militant organization that has declared itself a sovereign state as an Islamic Caliphate.  The light red area show the territory that it claims.

Thoughts On The Rise Of Soccer

Soccer is the most popular sport in the world, almost everywhere but the United States.

When I grew up, I was one of the first generations of kids to play soccer.  None of our parents knew the rules.  Now, as an adult, both my children have played soccer and I've been able to provide meaningful guidance to them in doing so, perhaps not at international standard, but I know the game.  Of course, my son now plays lacrosse, I game I'd never even seen played until my late 30s, and still don't really understand, so the cycle repeats itself - although lacrosse is a Pre-Columbian American sport from the Northeast, even if it didn't reach its modern form until much later.

Pro and college American football is still the king of American sports, but fewer and fewer school kids play it, in part, because the risk of injury is so high relative to soccer, basketball, and other leading sports.  Rural school districts that once prided themselves on their football prowess now field reduced size teams if they have football teams at all.

I played T-ball (I was so bad that I struck out once, which is bad when the ball is sitting still on a stick) and played on a firm softball team once, but never advanced to fast pitch.  Baseball is hardly played at the school level anymore, in part because it is a summer sport when school is out of session.  Also, to be honest, baseball is boring as sin and lots of people don't watch it or have an interest in playing it anymore.  A perfect game is my idea of a nightmare.  We see about one Rockies game a year in person for the stadium experience.  No sport is easier to follow in a radio broadcast or with a newspaper box score report.  And, we watched when the Rockies made it to the World Series, but I don't even understand the playoff system in baseball and they play so many, many games.  I also don't get why the World Series includes only the U.S. and Canada, despite the fact that there is one more great baseball playing country in the world, Japan, that is excluded from it.

When I was growing up and first playing soccer, the U.S. was awful at the sport and didn't have a pro-soccer league.  Now, the U.S. has a pro-soccer league (including Denver's own Colorado Rapids franchise with its own dedicated soccer stadium at Dick's Field), and we have made it to the final 16 in the FIFA World Cup in Brazil (an even that occurs only every four years, like the Olympics).

Symbolically, the new found American love of soccer, demonstrates that even the U.S. is slowly making its way towards the international norm.  It has been slow in coming, just as we have been reluctant to adopt international norms like the metric system in our daily lives, universal health care, belief in evolution rather than creationism, to disavow life without parole sentences for juveniles, to abandon the death penalty, and to cease using of jury trials on a widespread basis to resolve civil disputes.  It is a sign of cosmopolitan times.