This was the same Obadiah....

 A confession - this week's Haftarah (Prophecies) portion - the book of Obadiah - is probably my favorite in the entire TANAKH (Old Testament).  Why?  Because it is short (about 1 1/2 pages) - but it packs a punch. The entire book is about Obadiah's message from G-d.  Ok, so what is so important/special about that? The TANAKH is full of messages from G-d.  What makes this one noteworthy?

It wouldn't be - unless you consider the messenger.  Obadiah (if it is the same Obadiah, and most of the scholars agree that it probably is) is the captain of King Ahab's guards.  The one that lead the search for the prophets after King Ahab declared them enemies of the state and put a bounty on them.  Nowhere in the history is he identified as a prophet.  Scholars debate whether the proper introduction to the book is "The Prophecy of Obadiah" or "The Vision of Obadiah." In fact, even though Obadiah had a vision, he still isn't called a prophet, but his vision is recognized as being prophetic and has been included with the writings of prophets with bone fide credentials.  But why is this important?  And what does it have to do with our lives right now?

Very often, people without credentials, without the proper "alphabet" behind their name or title have insights into important issues.  Something that they are able to see from their unique perspective, very likely because they do not have the appropriate alphabet behind their names and titles.  They are free from the blinders that the credentialed people have and are able to see things that the experts can not because their expertise blinds them to viewpoints that are derived by experiences in other disciplines.

Reading Obadiah, it is clear that he is not a prophet in the traditional sense. Even though he speaks in metaphors, his message is not mysterious or hard to understand.  His metaphors draw clear parallels with events happening right then and relates them back to prior historical events. He is a man versed in intelligence, in counter-surveillance, in espionage and treason (as the account in First Kings says "this was the same Obadiah that hid the prophets of the Lord).  He has experience with living a double life during the years that he hid the prophets and protected them from discovery during the search - all while serving the very king that signed their death warrant as his highest-ranking military officer.  

As a prior double-agent, he is able to see that Israel has trusted "allies" that are working for the other side.  He speaks of allies deceiving Israel, and confederates "prevailing against you." He is warning that if Israel continues to believe them and continue down this path, Israel will be destroyed. He speaks of the betrayal of the tribe of Judah by the Kingdom of Israel, and how this betrayal will have consequences. Even though he speaks of the "day of the Lord" - intimating that G-d is the one that will bring about the disastrous consequences - he is quick to point out that his own people, the Israelites, will play a large role in their own downfall because of how they behave. 

There is speculation about the "we" language at the beginning of the chapter.  Scholars theorize that this points to multiple authors of the book, but having studied with military advisors and policy analysts, I find it more likely (if it is the same Obadiah), that Obadiah has received accounts from many sources - including prophets and seers, and he is distilling them down into this report - a "prophecy" from the Lord. The ascribing of this account to Divine authorship gives it weight and veracity.  Kings were far more likely to listen to and obey words they believed came from Divine guidance and authority.  Military advisors - like Obadiah - were often less important than prophets and seers when it came to advising Kings on military and foreign policy matters.  Still, this book, even with its prophetic sounding language and use of "Lord" and "G-d" as the ultimate authority on the matter, sounds suspiciously like a military and foreign policy briefing with plenty of warning about what is likely to happen if Israel continues to ignore what is happening within its own borders and allies and continues to believe in their own moral and military superiority.  Sometimes when I read Obadiah, I wonder if he is again operating as a double-agent, creating relationships with those who seek to undermine and destroy Israel and reporting back on their activities.

While it is tempting to see this as something that happened "back then" and has nothing to do with our current events, if we were to update the narrative with "Republicans" and "Democrats" instead of "Judah" and "Israel" would we see the relevance?  Would we recognize that gloating and moral superiority undermines good relationships? Would we see that "confederates" - people that we believe to be on our side but actually working for the other side and reporting back on our strengths and weaknesses - will be those that eventually tear our society apart.  Will we come to understand that by failing to listen to individuals with opposing viewpoints to the popular narrative, we risk missing important information and details that could mean the difference between becoming stronger and more united or weaker and more divided? 

The consequences of failing to recognize enemies within our own ranks - whether people or ideologies - weaken our ability to take steps to strengthen our communities and our country.  We must be willing to listen to those who point out the flaws in our thinking, the people who say that they want one thing, but their behaviors and actions show that they actually want and believe something completely different.  The language at the very end of the book is clear - if Israel continued to ignore what was happening within their own ranks, Judah would rise again much stronger and conquer them and completely take over the entirety of the Kingdom.  The only way to save Israel was to recognize false allies, teachings and ideas that undermined the strength of the whole, and thoroughly question what was right for the entirety of the country and what it would take to create a more unified relationship with Judah, rather than tearing the Kingdom apart even further. 

We see this now in our own politics.  The divisive politics that is currently dominating our American political culture is hurting our collective well-being both politically and socially.  Cancel culture hurts the strength of our country because it ends thoughtful, engaged debates from individuals who hold opposing viewpoints.  If we are to take Obadiah's briefing seriously and apply it to today's events, we must be willing to engage in thoughtful debates and test the ideas expressed during those debates against the behavior of those who hold and promote specific ideologies.  By engaging with others in respectful, open, thoughtful debate, we as a country will be able to discern who has the best interests of the whole country in mind and who seeks to create division and weaken us from the inside for financial or political gain.  These are the confederates that we must be aware of and the ideologies we must work to root out of our political culture and collective identity.  We must once again have a place where thoughtful people are able to respectfully discuss issues and disagree with one another in order to regain our strength and unity.

Crossing the Line

 It has been a long time since I posted something to this blog.  I shuttered it largely due a lack of time and feeling like I had nothing to add to the conversation.  However, in the aftermath of the election I am moved to speak, to critically examine an idea that we in the Judeo-Christian community need to consider with a sober and searching heart, regardless of what side we voted for.  If you don't consider yourself a part of this community, or you don't agree with the assumptions at the beginning of the post, please gently consider that you might not be the intended audience of this post and refrain from posting inflammatory or argumentative comments.  This post is not for you.  And as someone who struggles to manage her "spoon count" so that she doesn't run out of spoons before she retires to bed, I again ask you to graciously consider that if you are not a part of the target audience that you don't start a flame war in the comments section or on my FB wall.  If you don't feel that you can respect that request, please stop reading and move on.

If you are still reading, I am making the following assumption: all of us here believe that we are not the ultimate deciders of our political fate.  That we are merely tools in the hands of a Divine Being who uses us, despite our imperfections, to carry out a Divine Plan.  If this is not your belief, then the rest of this is not written for you.  For those of you who do believe that we are tools in the hands of something Greater than ourselves, then we must thoughtfully consider the following argument:

The Divine Plan allowed Trump to be elected in 2016, and, for reasons beyond our ability to understand, allows him to suffer defeat in 2020.  We do not understand why, but, arguably, it is not our place to understand why. Rather, we need to accept  - as with so many other things we struggle to accept - that there is a Reason, and part of our having faith is accepting that we may never understand that Reason during our lifetime.  

This change of Divine selection is not new.  It is, in fact, something we have seen time and again, beginning with the Divine selection of Judges, and then first Israelite king, Saul.  Initially, Saul was humble; he was a servant who accepted his place and his role in leading the Chosen people.  He sought wisdom, acted in accordance with the guidance given to him by priests, prophets, judges, and counselors.  He acted on behalf of the people, implementing what G-d wanted and carrying out that Divine Plan. He "walked with G-d."

But somewhere along the way that changed.  Saul "grew proud."  The Old Testament/Hebrew Bible does not elaborate on what exactly this pride was or where it came from.  He "grew jealous" particularly of David.  He began to suffer from other issues that impacted his ability to rule in a way that was in harmony with what G-d wanted.  He grew apart from G-d, and despite repeated attempts by his prophets and advisors to bring him back and help him reconcile with G-d and the people, he continued to drift further and further away from the Divine plan.  Somewhere, and it isn't exactly clear where, Saul crossed a line where he was unable to continue to carry out the Divine plan G-d had for the Israelite people, and instead became a harmful influence and a source of division. 

Which brings me back to the election and our current situation.  While we may be tempted to call the results "unfair," and "fraudulent," and make accusations of stealing and corruption, we must also consider the possibility that somewhere, in some way, Trump went the way of Saul, and crossed the line between being someone whom G-d could use and someone who presented a danger to the future of the Israelite nation.  If we agree that we believe that G-d uses flawed and imperfect people to further his work, then we must also accept that, like Saul, there may be cases where G-d decides that this person causes great harm to the people that he is supposed to be serving, and withdraws his blessing of leadership (as he did with Saul) and gives it to someone else - in our case, Joe Biden. 

For those of us who supported Trump, this loss is a sting.  We did our part - we voted, we campaigned, some of us may have even contributed money or volunteered with a local election team.  Right now things feel very dark and scary. We feel disappointed.  We feel cheated. We feel grief and loss. We wondered how this could have happened. We look at our friends, those we saw supporting Biden, and wonder how they could support someone we find untenable - perhaps even wondering how G-d and the Universe could let this happen.  There is the temptation to fight back.  

But now is not the time for action.  Now is the time for silence.  To allow ourselves to feel what we feel - all of it - and resist the temptation to act impulsively.  Right now, our first priority is to stop and wait for the whirlwind of emotions and storms of impulse to subside, so, like Elijah, we can hear G-d in the stillness and receive a message of comfort and hope.  By allowing G-d to speak to us and comfort us, we can be reassured that even though we do not understand why this happened, it is a part of The Plan; we need to let go of our desire to control the outcome and have things to go "our way." Instead, we need to have the courage to believe that things are going G-d's way according to The Plan.  Right now, we need to have faith, wait and see what G-d has planned, and reach out to comfort others who are, like us, struggling with trying to understand how this could happen, and where is G-d in all of this.

We may look back when things are less emotional, less fraught, and with a more discerning eye see how we have been divided.  We may possibly see, perhaps only faintly, where Trump had the potential to set things in motion that would have had disastrous consequences later on.  We may see how our beliefs and loyalties were used to create division where we might have built relationships.  Again, this is nothing new.  The clashes between David's supporters and Saul's supporters were violent and bloody.  There are accounts of how families were torn apart over the issue of loyalties.  There are stories about how there were truces and periods of peace, followed again by violence and destruction - instigated by both sides. Following the death of Saul and the end of the civil war between the tribes of Israel, it took both sides willing to be brave and come together in order to heal the nation and return to G-d's Plan for them.  Like them, we may be called to be brave and come together to seek peace.

For those of us who supported Biden, now is not the time to gloat.  There is no glory in a victory that demeaned others by calling them names, casting aspersions on their intelligence, ridiculing their choice of faith, their values, and their world view in an effort to gain an advantage.  If we think that we were successful at refraining from doing those things personally,  look again at what those on our side did when raising his banner.  Were we as a group unkind, hurtful, boastful? Did we use their own teachings or beliefs against them? Did we turn a blind eye to what our friends did even though we knew it was hurtful? What they did colors all of us.  Reading the books of Samuel and Kings with a critical eye reveals that both sides participated in violence and bloodshed in order to promote their chosen leader.  We have been no different.  

While it is tempting to scapegoat the loosing side with the responsibility for how things went down, a thoughtful and sober read of the years of civil war and unrest between Saul and David tells a story of how both sides acted honorably and both sides acted with malice, neither side willing to step down and cede control to Divine Authority or wait for clear guidance from a judge, prophet, seer, or messenger as to what were the appropriate next steps.  The conflict only ended after Saul and Jonathan - whom David "loved more than a brother" - were killed in the heat of battle.  Even then, it took many years following Saul's death and David's ascent to the throne to completely end the low-level infighting between supporters of Saul and supporters of David; fighting that threatened the tenuous peace that held the kingdom together.  We too, are likely to enter a time of tenuous peace, and unless we are willing to own up to the hurt we have caused and the injustices we have perpetrated against those who followed their conscious and believed that they were doing the right thing, we are likely to continue the hurt and discord, similar to the discord that plagued David in the early years of his reign and caused further violence and unrest. 

It is time to lay down the banners.  It is time to stop the hurtful behavior.  It is time to pray, to listen, to ask for forgiveness, and to offer forgiveness when it has been sincerely asked for.  In the words of Abraham Lincoln, it is "time to bind up the wounds of the nation." 

Reflections on Memorial Day

I was born on a military base during the Vietnam War. 

A little over a year before I was born, my father, Lieutenant Commander James Couperus, MD, had been assigned the post of Executive Officer, Medical Services, Whidby Island Naval Air Station - which is a fancy way of saying that he was the number two doctor at the hospital on the Whidby Island Navy Base. The day I was born, the Navy hospital corpsmen threw me my first birthday party - I was about two hours old.  According to my dad, I was the “most spoiled and adored baby” among the medical staff on duty during the time I was in the hospital. (That may have been because I was one of the only babies in the base hospital.)  When I imagine what that might have been like, I envision nurses and corpsmen in BDUs and officer tans giving me weight checks and holding me - a tiny pink bundle cuddled up against camouflage.

To this day I have a visceral reaction of comfort and familiarity to sights and smells associated with living near a military base and a dad who was on active duty.  The sharp smells of jet fuel and diesel exhaust, men and women in all manner of uniforms - flight suits, helmets, battle dress, and formal uniforms; the thunder and roar of military aircraft passing overhead. Again, I have no cognitive memory of this brief amount of time, but my “lizard brain” reaction to them is unmistakable. My first memories of safety and home are intimately tied to our military. My sister and brother - born just before and just after my father’s military service, don’t have these same reactions.  They are uniquely my own. So the tension that is present in the UU tradition between the military and our UU leadership resonates strongly with me.  Because of this, I felt it was important to share my reflections on Memorial Day as a military brat and a UU.

Memorial Day is a day to reflect on what the true costs of liberty and freedom are.  It is also a day to honor those who bravely paid the ultimate price for securing that liberty - to ourselves and our generation.  It is a sacrifice that should not be taken lightly.  For UUs, it is also a day to respect those sacrifices with an honest soul-searching about how we address the conflict between our principles and our politics.  As UUs, we prefer to uphold those social justice leaders who idealized non-violence: those like Martin Luther King, Jr. and Gandhi.  We are less comfortable with those who see violence as a means of bringing about social justice when peaceful means are not effective.  We are uncomfortable with Malcom X and other revolutionaries that espouse violence as a means of bringing about change.  We are uncomfortable with the knowledge that violence is sometimes required to end oppression and tyranny.  We struggle with the Doctrine of Just Warfare, with Augustine, with Aquinas, and other spiritual icons who discuss the reality that war is not only inevitable but sometimes necessary to protect those who are vulnerable.  Memorial Day is a day when we can stand in that tension and acknowledge the cost and sacrifice that is sometimes required to secure peace and liberty.  As UU Minister and Navy Chaplain Rev. Cynthia Kane said in the UU World article “Embattled Faith”: “to do the work of peace, I must understand the making of war.” We UUs must also understand the making of war and come to terms with the fact that protecting and upholding democracy and freedom will sometimes require war and sacrifice. Memorial Day provides a yearly opportunity to wrestle with those tensions.

Liberty. Freedom.

Those words have taken on more significance in the last couple of months.  We have all felt the mental strain of having our normal routines curtailed.  We have all felt the pressure of having to account for where we have traveled and remember whom we have come in contact with.  We have, with a strange mixture of hope and fear, watched for signs that life can begin to return to normal.  What we need to recognize is that normal isn’t coming back - and this weekend is a perfect time for us to look to our past as we begin to plan for our future.

We have all heard the saying, “Freedom isn’t free.”  It is sometimes used as a tagline, sometimes as a verbal punch, sometimes said in irony, but no matter which way it is used, every year, we are once more offered the opportunity to pause and reflect on the truth of that saying.  This year, I feel it is even more important that we remember the origin story of Memorial Day and what it can teach us going into the future.

Memorial Day was first commemorated at the end of the Civil War. Former slaves and freemen that had fought with the Union Army in segregated units gathered together to observe an hour of silence for the Union Soldiers that had bravely fought and died to secure their freedom. They felt it was important for them to recognize the sacrifices of those who had fought and died in order to secure the blessings of liberty, protect the ideals inscribed in the Constitution and give them freedom. This early celebration of Memorial Day was later co-opted and folded into the larger fabric of American society, becoming one of several patriotic holidays celebrated in the United States.

The Civil War changed the landscape of American Society.  There was no longer “free” or “slave.”  The 13th Amendment ended slavery and paved the way for what we now call “The Civil Rights Amendments.” Amendments that would seek to secure equality for everyone - Black, White, Male, Female.  Yes, I realize that I am using antiquated terms, but using them honors the intent of the writers: discrimination based on physical and biological characteristics of race and gender would no longer be legally permissible under the highest law of the land. Everyone deserved to live their lives in freedom and as equals, and everyone was to be regarded as equal under the Constitution.  Even though it took nearly a century for those ideals to come to fruition and we are still weeding out inequities and repairing the harm caused by slavery and oppression, the seeds of those ideals were planted at the end of the Civil War, watered and fertilized by the blood of those who gave their lives, and the tears of those they left behind. I was unaware of the origins of Memorial Day until I learned about it during my American History survey course in college. The gradual erasure of the role of freed slaves and freemen soldiers from the origin story of Memorial Day highlights our continued struggle to include stories from minority cultures in our written accounts of US History.   Another aspect that makes Memorial Day especially complicated for me is that so many UU Memorial Day sermons focus on the lives sacrificed in the fight for social justice and equality, while remaining silent on the role of the military and warfare in the pursuit of social justice.

During the Civil War and World War II, Unitarians sided with the Union Army and the Allied Powers.  They spoke out against the injustice of slavery and the threat of authoritarian tyrrany. They felt that there was clearly a “good side” and a “bad side.” In Unitarian history, Memorial Day was heralded as a somber celebration - a time to remember those who served and died to secure the blessings of liberty and make the world a safer place. Later on, the Vietnam war and the violent political turmoil surrounding the civil rights movement changed the UU relationship to holidays and rituals celebrating liberty, freedom, and American patriotism.  We struggle as a denomination to find harmony between our values that celebrate the inherent worth and dignity of every person, the honest and free search for truth and meaning, and our democratic values, which denominational leaders felt were co-opted to advance an American political agenda that marginalizes vulnerable populations and cultures. Vietnam created an uncomfortable tension between the democracy and liberty that UUs cherish, and the violence that is sometimes required to achieve those ends.

The mirror of our past reflects the uncomfortable truth that we as a denomination have come up short. While we stood up to oppression and  tyranny during the Civil War and World War II, we turned away and failed to provide honest, difficult leadership during the Cold War when political and military actions created tension between two of our cherished values: the inherent worth and dignity of all humanity and the free and responsible search for meaning through democracy and the democratic process. During the Cold War, securing peace required the willingness to use military force, a tactic euphemistically called “diplomacy through other means.” Our UU belief in the freedom to search for truth and engage in the democratic process collided head on with the equally important liberal religious value of recognizing the inherent worth and dignity of all individuals and the requirement that we treat all human lives with dignity and respect as part of our interconnected web of life.  During the Vietnam War, UU clergy and leadership supported demonstrations and speaking out against the war, while failing to acknowledge that the Constitutional freedoms that gave them the right to assemble and protest were the same liberties that the United States believed it was protecting. The United States military response to what our government perceived as a “real and credible threat” to democracy, not only in the United States, but across the world, changed the UU perception of the military from an ally in creating and shaping social justice to an instrument of oppression and cruelty wielded by an unjust government.  This about-face in perception created an uneasy relationship between our past, our present, and our future that we continue to struggle to resolve.
 
This Memorial Day we again occupy liminal space at the threshold of a changed landscape.  COVID-19 has eroded our liberty and freedoms to an extent not thought possible short of an armed invasion of the United States.  States and counties have issued executive orders that do not provide for Constitutional requirements of due process and judicial review, while at the same time restricting worship and travel - because of the real and credible threat to our individual health and safety. Tensions have flared up between those who feel like the emergency orders are a threat to our Constitutionally protected freedoms,and those who believe that lifting the emergency orders threatens the health and safety of our vulnerable populations. With our never ending 24 hour news cycle, we are inundated with news reports about the deadly effects of COVID-19, while at the same time news reports are increasing about the long-term and sometimes deadly consequences of extended stay at home and social distancing orders. Both are accurate.  Both sides have the advantage of being true.  Lawsuits representing both sides of the argument are being filed. Our individual freedom is tenuous, and both sides feel the abrasive effects of uncertainty. Once again we are challenged as we try to reconcile competing UU values: the dignity and worth of the individual, the individual search for truth and meaning, and the value of the interconnected web of life, when all choices available result in some form of collateral harm.

The American Military is the personification of that tension. Members of our UU community, who also serve in the military, report feeling tension and stress around holidays and rituals honoring our military and memorializing our participation in armed conflicts.  They feel called to serve in the military while at the same time identifying spiritually as UUs; explaining this call to service can often be difficult. They are grateful for the service of UU military chaplains who help them navigate and explore what it means to be UU and serve. They are grateful for UU military chaplains that share this dual identity and  struggle with how to honor both their military identity and their spiritual one.  Memorial Day is especially difficult because while the larger military community comes together to remember, pay respects to our fallen soldiers, and grieve, many UU congregations shy away from addressing the needs of UU service members who seek comfort and support from their faith community, choosing instead to recognize spiritual and political leaders who sacrificed and died while engaging in social justice work and remaining silent on the contributions of the military in pursuit of those same ideals.

Outside the military, UUs - particularly UU clergy - have the difficult challenge of reconciling the uncomfortable truth that our values of freedom and democracy come at a price. As our faith tradition also values and prioritizes the worth and value of all individuals - regardless of political or religious beliefs - the price of life in exchange for freedom feels like too high a price to pay.  For those of us who have been a part of military life, we understand intrinsically that the absence of war does not equal an absence of suffering and death. We have learned that  doing the right thing sometimes can and will result in injury and even death.  We understand that protecting those who are weak and more vulnerable comes with risk, including the risk of suffering and death. The struggle to successfully engage with and reconcile the values of human worth and dignity and the values of freedom and democracy are challenges that all UUs share, especially now as we face an uncertain future.

This Memorial Day offers UUs the opportunity to confront those tensions and acknowledge the price of democracy and freedom. It offers up the opportunity to remember the history of Memorial Day and pause to remember those who gave their lives in order to protect our right to worship together, regardless of whether or not we as a denomination agreed with those decisions.  This Memorial Day gives us the opportunity to recognize the inherent worth and dignity of those who felt called to serve and gave their lives in service.  It also gives us the opportunity to engage in the difficult conversation that our UU values can be at odds with one another and part of our faith journey is to confront those difficulties and find a path that respects both.  As we look toward what the future brings and the struggles between safety and democracy that are on our horizon, I hope that we use this Memorial Day to remember our UU history and pay the highest respect possible to our UU service members who gave their lives: to engage honestly and bravely with struggle between our cherished freedoms that they sacrificed their lives to protect and their belief in the inherent worth and dignity of every individual.

Believing Is Not Enough

The 3-ring media circus and resulting social media fallout that is otherwise known as the Kavanaugh confirmation hearings, has generated a lot of discussion about the credibility of both sides - including whether or not Dr. Ford is a credible witness, and if Justice Kavanaugh has the professional temperament to be confirmed to the highest court in the nation, both of which are fair questions. Along with that examination of credibility and fitness, came a host of responses. The one I didn’t expect to upset me as greatly as it did was the response of my clergy association - the Unitarian Universalist Association. They basically said (I’m paraphrasing here) “Our thoughts and prayers are with Dr. Ford.”

WTF??

You see, I am a Unitarian Universalist and practicing Reform Jew (yes it works - I’m not going to explain it here) My clergy - especially the ones in the highest echelons of the administration - are known as being progressive.  They are the ones that show up at immigration rallies and marches leading the protest and getting arrested “for the cause.” They have cheerfully disclosed that getting arrested is “on their clergy bucket list,” and don’t feel they have really earned their social justice stripes unless they’ve seen the inside of the local city detention center - from behind bars.  It is not unusual for our denominational publication - UU World Magazine - to feature pictures of church leaders protesting and (occasionally) getting arrested. They are the ones that encourage our congregations to hang rainbow flags on the outside of our churches along with banners that say #BlackLivesMatter and #LoveWins, and organize carpools to the Women’s March in large cities like LA, Boston, and New York. Visibly protesting injustice comes as naturally to them as breathing.(1)

So I was surprised and let down when there was one (short!) Op-Ed article written by a UU administrator - and not the President - on the importance of believing Ford and why the hearings matter. It was approximately one column inch.  There was no analysis of the issue, no call for action, no denouncing of the injustice and national display of entitlement and white privilege broadcast on every major network in the nation, and even some international networks. No cry for justice and the rights of women to be safe in their own homes, neighborhoods, and schools - even though the current UUA President is a woman. No stirring speeches or calls to protect the integrity of our justice system and the judicial hearing process.  Just an op-ed on why it was important to believe Dr. Ford.(2)

I was similarly let down when the Pacific Southwest District (PSWD) Clergy association submitted a picture of themselves and a statement - “We Believe Survivors.” (3) Disappointing because - again - the clergy in my district is comprised of a majority of women, and the picture submitted represented that majority, taken at our beautiful camp in the mountains, far removed from gritty urban landscape where the Capitol building sits in Washington, DC.  The same location where many of our clergy from all over the country rallied in support of gay marriage and the overturning of CA’s Prop 8 - which ultimately ended up in front of the Supreme Court (SCOTUS).  The same Supreme Court that is the focus of the current hearings. Let me say that again.  UU Clergy from all over the country came and rallied at the US Capitol and the Supreme Court during the Prop 8 SCOTUS hearing because the issue was that important.(4)

The comparative silence of the UU Leadership on the plethora of social justice issues brought to light during the Kavanaugh hearings is deafening in its absence.

Juxtaposed with that picture and statement in my Facebook feed was a picture of “the hallowed halls of Yale law school,”(5) where students and faculty - some of them professionally dressed, some of them wearing hoodies and sneakers - were staging a sit-in protesting the Kavanaugh confirmation. The caption in the picture and the accompanying story highlighted that it was both students and faculty that organized the sit in protesting the nomination.

I want to let that sink in for a moment.  Yale Law Students. Sanctioned and organized by the Law School Faculty.  Sitting in.

As a law school graduate, I can tell you that there are not enough hours in the law school day or even in the normal human day to adequately cover the breadth of material contained in the average law school semester.  You eat, breathe, and sleep law. (Like the t-shirt says: Law School - Eat, Sleep, Breathe, Study - choose two.) There are only two things that exist when you are in law school - the classroom and the library. If you aren’t sitting in class, then your brain (and the rest of you) is in the library hunting down that dissenting opinion on a case that was mentioned as a footnote in a class argument, because rumor has it that the Prof teaching that class has a thing for writing test questions based on dissenting arguments, and if you want your study notes not to have holes in them, you’d better find that case - and the six others that the dissenting opinion references.  And if you can’t find them, you hope and pray that someone else in your study group does. Law school is not for the weak.

It’s also not necessarily known for its activism - because it largely occurs behind the scenes.  Yes, law students and schools will issue position statements - mostly to other legal news outlets and journals. Students compete for the honor of writing and editing for law review journals, where legal opinions on the state of the profession and current legal theories are examined and questioned. We debate whether or not justice was served when we examine SCOTUS decisions in our Constitutional Law classes, and we discuss and wrestle with the “Pay to Play” culture of our current justice system and how it hinders equal access to our courts and causes legal disenfranchising in our Professional Responsibilities courses.  We will sling legal arguments about current events across the table at each other - during those those rare times when we actually sit down to eat or take a break for coffee between classes. We work for legal aid and volunteer at the legal clinics at our schools - which provide representation to those low-income and underrepresented clients we’ve discussed in our Professional Responsibility classes. Our activism is enveloped in our educational experience - because if we don’t multitask it doesn’t happen. And it rarely makes front page news...unless you count the alumni newsletter.

But we rarely skip classes.  We don’t even skip classes when we’re at death’s door (even when our doctors order us to) - especially during midterms or finals. It practically takes an “Act of God” to get us to skip or cancel class, and, as everyone who has ever taken a class in Tort Law can tell you, an “Act of God” is extremely rare. Even when students skip, the profs just keep right on going.  As one of my professors once said, “We only have 16 weeks to cover this material, we can’t afford to give up class time.”

So, for Yale Law Students and Faculty to skip an entire day of classes in order to sit in and protest the Kavanaugh hearings. Yep - arguably an “Act of God.” Which is why I found myself incredibly disillusioned with the response of my clergy and denominational leadership.  The ones that have made protest part of their professional resume - and pride themselves on being at the forefront of social justice. The ones whose job descriptions endorse nonviolent resistance and CVs boast of interfaith justice work.  Those who advertise social justice activities in their sanctuaries and endorse political activism from their pulpits. The ones whose covenant states “service is its prayer.”

If the onus is on either group to stand up and make a statement denouncing the state of affairs in Washington, it is arguably the UU clergy and leadership.  There is ample evidence of them protesting injustice and championing the rights of the underrepresented and disenfranchised. They regularly call for action on issues of social justice and oppression.  They have previously campaigned for fair and equal treatment for everyone - regardless of gender, sexual orientation, race, or class, even when it was the politically riskier move. They are not known for remaining silent on issues of national importance. Which is why the whisper rather than the roar is not only disappointing, but surprisingly out of character.

Because they were invisible, when the legal community was not.

Lawyers - a community that is regularly the butt of jokes about questionable ethics, sleazy dealings, and moral bankruptcy - in one of the most privileged, entitled, elite law schools in the entire country, had cancelled classes and were staging a sit in because of the refusal of the Republican party to listen to the concerns of its constituency and the moral outcry of the nation to remove Justice Kavanaugh from consideration for SCOTUS and pick a new candidate.  Lawyers - who are known for having each other’s backs - broke ranks and protested their own alumnus because they considered him “unfit for duty.” An event that was newsworthy enough that it merited its own photograph and a story.  The halls of Yale Law School filled with students and faculty sitting together on the floor, calling attention to their opinion that Justice Kavanaugh should not be confirmed, and through their actions saying “enough is enough.”

While my own denominational leadership issued a “thoughts and prayers” statement, and one picture of the local clergy participating in a larger protest outside the Capitol building.

WHY??

This is my question to you, UU Clergy and Leadership. WHY AREN’T YOU ADDRESSING THIS? I can guarantee you the conversation is highly relevant.  It is HIGHLY LIKELY that facilitators teaching Our Whole Lives (OWL) classes going on right now are going to face questions about rape, consent, drinking, and if what Kavanaugh did was immoral (which is not under debate - the majority of everyone polled agrees that what he did wasn’t right) and questionably legal, then why is he still being considered for one of the highest positions of authority in the country? And the other question hard on its heels - the one I dread because my daughter is in District Youth Leadership - WHY aren’t my clergy out there protesting the Kavanaugh vote as vigorously as we protested the election of President Trump and his policies against women, minorities, immigrants, and undermining of our constitutional rights? What do I tell her, her friends, and the rest of our Youth that look to us for guidance?  What does she tell the other youth in our denomination? We believe Dr. Ford? In this moment of national importance when we have the responsibility to step up and take a stand for moral justice in this country, the best you can come up with is “#WeBelieveSurvivors”?

Right now, your OWL facilitators are likely preparing themselves for questions about “Renate Alumni” and “Devil’s Triangle.”  They are bracing for conversations about consent, ethics, leadership, rape, and all the other uncomfortable topics that teaching Sex-Ed to teenagers brings up. They are preparing to answer questions about drinking and responsibility.  There is a good chance they are going to have to answer whether or not drinking to the point of being blackout drunk absolves you of responsibility for raping another person, because arguably it does (and right there you have enough material for an entire legal essay on intoxication and intent.)  I know, because as an OWL facilitator, if I were teaching a class this fall, it is exactly the type of questions I’d be expecting from my class, and conferencing with the rest of my team to come up with a plan of how we would address it and what we would say when the questions were asked. And even if they don’t ask about it, figuring out how we would work it into the curriculum, because as OWL facilitators, we have a responsibility to discuss it.  We have the responsibility to “put it on their radar,” and make them understand that they can still be held criminally liable for their actions even if they’re drunk or impaired - even if other, more privileged and powerful individuals are not.  We have to talk about how stupid decisions can have lifelong consequences - all while elite privilege and entitlement the likes of which have never been played out in full view of the entire country the way they are right now looms large in the background and the public conscience.

I’m asking because it’s important. Your Clergy and your Religious Education Directors are going to be looking to you for answers, because their congregations are looking at them for answers.  So far your response has failed to give me confidence. We’re looking to you for moral leadership and you give us #IBelieveSurvivors as a FaceBook photo frame? Where is the position statement?  The call to action? The cry for justice? Why doesn’t this issue merit even a fraction of the attention given to the issue of immigration or gay marriage? What about this issue has rendered you silent on the matter?

SMH.

Here are a few statistics:

51% of students in seminaries are now women (6)

51% of students in law school are now women (7)

Contrasted with:

35% of lawyers are women (8)

Unitarian Universalist female pastors [my denomination] now outnumber men 17 to 14 - and that number is increasing. (9)

According to the research, women are entering ministry and law in equal numbers.  Both groups will be deeply affected by the decision of whether or not to confirm Justice Kavanaugh to the highest court - as his decisions on the bench will impact their clients and parishioners for many years to come. There is a far greater gender gap to contend with in the legal community than in the UU Clergy community. So where were my clergy?  The ones who, arguably, have a greater stake in this outcome? Going by just the numbers, the legal community has a far lower moral stake in this hearing than the religious community does. Women in the legal profession still have a representation gap which would give them a pass. It would allow them to throw up their hands and say “we really can’t do much about it,” and issue a feel-good position statement like “we believe Dr. Ford,” without jeopardizing their status in the community or spending political capital on an controversial position.  It is the “safe” play. Again, it is likely that if that happened no one would have really blamed them because the legal community has been stereotyped as a morally bankrupt and compromised entity, and therefore, for us to issue a palliative statement that doesn’t say much of anything would be considered par for the course.

Because lawyers don’t put people back together.  By the time people show up in our offices, they’re already broken.  And we don’t specialize in putting them back together. That’s not our job.  Our greatest professional fiction is that we can restore them to the state they were in before the injury occurred.  But it is a fiction that haunts us. We can’t bring back the person who was murdered. We can’t give back the lost virginity.  We can’t return the hours, days, months, even years that are often spent pursuing justice for the injury caused by the faulty product or the car accident.  We can’t stop the nightmares caused by the assault. We confront our powerlessness and the feckless cruelty that exists in our world every day with the understanding that it is our job to pursue justice, but we are unlikely to bring about healing.  That healing broken spirits doesn’t generally happen in our line of work. We just clear away the external damage so that healing can hopefully happen with other hands that are more trained and skilled at that sort of thing than ours.

Even in that,  we face the ironic cruelty that the people whom we entrust to help heal us and give us back our faith, our dignity, and our self-worth are sometimes unable to find the courage and rise to the challenges that life presents.  In those times, we look to them for support and leadership and find ourselves facing an empty space. We realize in that moment that we are the “adultier adult” as one meme puts it. We hear them say, “we believe you,” as we put on our professional “armor” and prepare to fight - but we don’t see them standing beside us as we draw attention to injustice and take a stand.  We find ourselves standing in the middle of the arena facing the lion by ourselves.

#IBelieveSurvivors

Belief is not enough.  The typical five-year-old believes in Santa Claus, the Tooth Fairy, and the right to cookies before bedtime.  And then those beliefs are translated into action - he writes the letter to Santa and then lobbies you to take him to Macy’s so he can mail it (10), she puts her tooth under her pillow with the expectation that the tooth fairy will deliver (11), and as far as the cookies before bedtime...see my earlier post on the Chocolate Chip cookie and the intoxication defense. (12)

Belief into action - the entire Yale Law School put belief into action in a very public, notable way.  They shut down classes and sat in; most of them professionally dressed for class, some even carrying briefcases, likely scheduled to intern at prestigious law firms later in the day.  The photo brought to mind the image of Rocket Racoon from Guardians of the Galaxy when he is being insulted.  His attitude is: “yeah, it’s true, so what,” until he is called “vermin” which causes him to draw his weapon and take a stand.  When asked why, his answer was: “it’s offensive.” I got the feeling, from reading the article and looking at the picture of the students lining that hallway, that seeing Dr. Ford brought up in front of the Senate to face questions about her assault - prior to a full FBI investigation and after the ABA had already issued a caution against confirming Justice Kavanaugh the last time he underwent a confirmation hearing for a federal judiciary position in 2006 - was enough for them to say, “it’s offensive,” and take action. It was very clear what their feelings on the matter were.

#IBelieveSurvivors

Even now those words sound hollow in my ears when I look at the picture of Yale Law Students dressed in black, lining the hallway, with briefcases at the ready, and then at the picture of my District clergy at their mountain retreat, the peaceful, idyllic forest in the background framed by the windows of the meeting hall. The contrast is breathtaking - and not in a good way.  It is the cold slap of reality, the untouched reflection of the world I live in. I am “Team Yale Law,” not “Team UU Clergy.” I do not have the luxury of watching from the cheap seats paying lip service to ethics and moral responsibility. I cannot afford to be silent when the honor of my professional community hangs in the balance. I owe it to my daughters, who watch me with critical eyes and judge my actions for better and for worse, to follow my conscience and speak my truth.  Even when it’s unpleasant. Even when it’s politically expensive. Especially when it’s politically expensive - because the more expensive it is, the more courage it requires.

I Stand With Yale Law.

Notes:

1. They are a major reason that I go to rallies armed with a Sharpie marker and my friend Miriam’s (a Los Angeles defense attorney) business card tucked in my wallet.  Sometimes I am the safe person on the outside who is charged with the responsibility of calling the attorney if they get arrested and “taken downtown.”

2. www.uua.org - Facebook thumbnail #IBelieveSurvivors

3. PSWD Clergy Network Photo - https://scontent-sjc3-1.xx.fbcdn.net/v/t1.0-9/42611633_2336840896330179_6131048798379573248_n.jpg?_nc_cat=102&_nc_eui2=AeHhETDIsERkhuMn5ay8zDca7LB9xFWyXgzSFbOvWKrKJs0ZnPGr1-LxERP8Eyt_JxpK-g14l8A7BUqEoT7QPx6gZyNsRJ3FWeo6xEpV9iBYEg&oh=918b1e80e53b9c52178970c03103c171&oe=5C5DC839

Incidentally - this is not on the PSWD main district page or on the main district FB page.  It is on their Clergy page as a photo. There is **no official district statement** other than this photo. It isn’t even clear that it is district supported, as it is on their clergy page and the only reason I saw it is because I’m friends with one of the members of the clergy group.

4. https://www.uua.org/search?as_q=prop%208#gsc.tab=0&gsc.q=prop%208&gsc.page=1 and https://www.uuworld.org/articles/urge-overturn-proposition-8 and https://www.uuworld.org/articles/uus-cheer-prop-8-ruling - these are just the full length articles.  These do not include the shorter op-ed and news highlights that are included in the above search results.

5. It’s in quotes because I remember hearing this exact phrase in a movie or TV show somewhere - sorry I can’t remember where otherwise I’d cite it for you - most likely in a Gilmore Girls episode, but again, I’m not certain.

6. https://www.nytimes.com/2006/08/26/us/26clergy.html?th&emc=th

7. https://abaforlawstudents.com/2018/03/30/where-women-go-and-dont-go-to-law-school

8. https://www.americanbar.org/content/dam/aba/administrative/women/a-current-glance-at-women-in-the-law-jan-2018.authcheckdam.pdf

9. https://www.deseretnews.com/article/780203/Unitarian-women-flourish.html - this statistic was difficult to verify.  I attempted to find a more current accounting of the percentage of UU female clergy, but this Deseret article was the most current one I was able to find.  It didn’t cite its source for the statistic, so I was unable to verify the number it gave.

10. I’m not making this up - my local Macy’s has a giant red mailbox with the words “Letters to Santa” written on it in white, along with a letter writing station right there - just in case you forgot your letter.

11. In California, the going rate for the first tooth is somewhere between $1 and $5 depending on your neighborhood and the average first-tooth payout at the local elementary school.

12. https://joanne9757.blogspot.com/2008/04/mommyhood-and-law-school-i.html

HHS v. Hobby Lobby

Sigh

Because of popular demand, I have posted an analysis of the Hobby Lobby opinion. 

**DISCLAIMER** I am not a lawyer, and I don’t even play one on TV, so if you have a real-life legal problem, please contact a licensed attorney.  If you don’t know one, your local bar association has a legal referral service.  So does your State Bar Association.  If you live in California, your state bar association has information online along with a referral service at  www.calbar.ca.gov  Do not contact me, because all I will do is reiterate that I AM NOT A LAWYER and refer you to your local and state bar associations for assistance in finding an attorney. 

Having said that…I will now give my well-educated, but strictly academic analysis of the opinion.

First of all, the ruling applies to “closely held corporations” not publicly traded companies or other corporations (more on that definition in a minute).  This is an important distinction from a publicly traded corporation, and other corporations, all of which are governed by IRS codes and statutes.  Closely held corporations are corporations that are owned by an individual or a family, they are not publicly traded, and more than 50% of the company stock/interests are held by 5 or fewer people.

The Religious Freedom Restoration Act (RFRA) protects the religious interests of corporations and applies the two-pronged “undue burden” test of “furthering a compelling government interest” in the “least restrictive means possible.” 42 U. S. C. §§2000bb–1(a).  This is not new or novel to this case.  In any situation where a fundamental right, such as religious freedom, is being burdened, the government has the obligation under law to ensure that the goals and objectives of the law are accomplished in the least restrictive way possible so that a person’s fundamental rights and freedoms are restricted as little as possible.  Right now, a corporation has the same rights under the law as a “person” as an individual does, and therefore the three plaintiffs in the case have the same rights under the RFRA as an individual person.  In its opinion, the court argued that protecting the religious interests of “closely held corporations” (corporations owned by a family or small group and generally not publicly traded) protects the religious interests of the people who own them.  This is a key consideration because even though the lawsuit was against a corporate entity, it was requiring the individuals who owned the closely held corporation to violate their religious beliefs, something the court took issue with.

The HHS argument that closely held corporations should not be considered persons under 1 U.S. was struck down when the definition of a corporate person was applied using the decision in Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418.  In Gonzales, the court ruled that a non-profit corporation was considered a person under 1 U.S., and therefore, the definition in Gonzales also applied to a closely held corporation.  Because of this, the argument that a closely held corporation is not a person under 1 U.S. and therefore does not have the right of religious protection under 1 U.S. was considered to be invalid for the purpose of applying the RFRA to the religious organization exemption provided in the Affordable Care Act (ACA).

Under the RFRA, the court also found that closely held corporations could claim religious protection under the First Amendment, even though they were “for profit.”  According to the opinion, to deny a corporation the right to exercise religious freedom just because they are “for profit” denies them equal protection under the law.  The law applies equally to all members of society, including corporations.  The law cannot “cherry pick” who is entitled to freedom and who is not.  The law must apply equally to all members and constituents of society – even corporations, even when it comes to the free exercise of religion and religious freedom Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877.

According to the HHS v. Hobby Lobby opinion, there is nothing in the RFRA that clearly defines who is a person under the definition of the act, nor does it specifically exclude any entity or individual.  When there is an absence of a definition or application, the court is required to apply the law broadly and include corporations and public entities that might otherwise be excluded through either definition or application of the law.  Neither of these applies in this situation.  The court found that the three plaintiffs were entitled to the protection of the RFRA. (Again the precedent is Smith 494 U.S.)  With that as the basis for their analysis, the court then looked at the contraceptive requirement under the ACA to determine whether or not the plaintiffs would be required to provide it despite the fact that they claimed it violated their religious beliefs.

As part of its analysis, the court looked at the burden and penalties the plaintiffs would endure if they followed their religious beliefs and did not provide coverage.  The court found that if they did not provide the coverage, they were going to face undue burdens and economic hardship – namely penalties and fines for not providing coverage or dropping insurance coverage altogether.  The court found that this would penalize them – a violation of the free exercise clause of the First Amendment.  Requiring a person to choose between their religious beliefs or significant penalties if they fail to comply with a law restricting their religious beliefs is a clear violation of the 1^st Amendment right of Free Exercise.

The HHS arguments about providing coverage for contraception for non-contraceptive reasons also were denied because it placed an undue burden on the companies to try and determine whether or not those reasons were valid and because it still violated their 1^st Amendment Right of the free exercise of their beliefs.  The court found that trying to determine whether an employee was prescribed birth control for a non-contraceptive reason was unduly burdensome on the employer and created a situation where the employer was put at risk for his beliefs being violated.  The court reiterated that it was not legally permissible for them (the court) to make decisions about whether or not a religious belief is reasonable – only if it is sincerely held, and the court determined that in this case it was.

However, the most compelling reason for the court’s decision was spelled out in the words “least restrictive means.”  Basically this says that the HHS provision that all companies must provide coverage was very broadly written, and did not take into account how to provide necessary coverage without violating the rights of corporations that were fundamentally against the use of contraceptives and abortion coverage.  When the court argued that HHS did not find the “least restrictive means” possible, they argued a very key technicality – namely that a statute must not be overly broad or burdensome and that all other possible avenues for coverage or compliance must be exhausted before this solution is put into place.

The court reasonably argued that HHS could have employed the methods already written in for providing contraceptives to employees of religious institutions or organizations that have a religious objection to contraceptives, or they (the government) could “eat” the cost of providing contraceptive coverage for women not covered under their employer plans.  These two options are already in place for other organizations, and the court was using statutory precedence to prove that there were other less-restrictive means necessary for providing contraceptive coverage under the ACA that would still comply with the RFRA.

The ruling was also important because it limited its scope strictly to contraceptives and specifically ruled out other medically necessary procedures such as surgeries, blood transfusions, etc. which are also sometimes found to be in conflict with religious beliefs.  In this ruling, the justices specifically excluded those, and strictly limited its ruling to contraceptives.  This limitation is important because opponents of the ruling argued that it would open the door for employers to start refusing coverage for necessary care such as blood transfusions and vaccines.  The language in the opinion clearly stated that it was not establishing this precedent, and this ruling should not be used to deny or discriminate coverage by using religious beliefs as a shield.  The justices made it clear that this was only for the purpose of contraception, and because of the fact that religious beliefs regarding life and contraceptive use are so intertwined that it is impossible to separate the two, and to attempt to do so would place the court at risk of interpreting religious beliefs (which is a huge violation of the First Amendment).  It also protected employees by explicitly stating that discriminating against someone on the basis of their medical needs and “cloaking” it under the guise of religious beliefs or doctrine would not be tolerated. 

In the end, the court’s ruling turned on the fact that there is another alternative to employer-provided coverage for contraceptives, and the HHS failed to give this alternative to the plaintiffs in the case.  Instead, they required that the companies in question provide contraceptives without considering whether or not there was room under the religious organization category for closely held corporations whose owners had religious objections to contraceptive coverage.

So, the decision here was ruled on a technicality – but an important technicality.  The “least restrictive means” test is a check on legislative power.  It keeps laws from becoming overly restrictive or burdensome.  It is important for religious freedom, because it protects the idea of “least restrictive means” and finds in favor of the person. Yes, in this case it was a corporation, but the law does not make a distinction these days on whether or not a person is an individual or a corporation – and the laws and decisions will apply equally to both.  This can be both a blessing and a curse.  It is a double-edged sword – there is no way around it.  You can not protect the interests of an individual person and at the same time deny those protections to a corporation, whom is also seen as a person under the law.  In it's opinion, the court walked a fine line between protecting religious freedom and protecting the rights of employees of religious organizations.

I’m sure that I will also be asked how do I feel about this.  To be honest, I have mixed feelings on the subject.  Religious freedom, and the right to worship in accordance with my conscience and my understanding of G-d and the Universe is incredibly important to me; this ruling reassured me that protecting religious freedom in this country is not something this court takes lightly or frivolously.  Because of the very politicized nature of this opinion, it is easy to lose sight of that fact.  This country was founded on the principle of religious freedom and the right to worship, or abstain from worship, as one sees fit.  This ruling strengthens this precedent by striking down a provision in the law that was overly broad and placed religious freedom at risk.  While that seems hard to believe, please remember that under common law, legal precedent is binding, and how it will be applied in later cases is not always foreseeable.  Citizens United taught us that, and serves as a cautionary tale in legal precedence.

As a woman and as a sexuality educator for my church, the ruling once again highlights how far we need to go in our conversations about sexuality, birth control, and responsible sexual practices.  Stripping away the arguments about how some birth control is necessary for other medical conditions, we must confront the fact that we are far less responsible about our sexual health and sexual choices than other first-world countries.  This decision highlights that instead of having the conversations about responsible choices and how to make responsible decisions about health and sexual practices, we instead have resorted to pointing fingers and arguing over who should have to pay for it, rather than discussing it as a part of being healthy and responsible members of society and how everyone bears the responsibility for making sure that we have access to the health care and choices that we need to make responsible decisions regardless of our religious beliefs, gender, or orientation.

The Hobby Lobby decision is important because it safeguards our religious freedom.  It is also important because it has opened the door to the larger, more difficult conversation about how we as a society make responsible decisions for ourselves and provide needed health care to everyone – not just those who believe the same way we do.

The Broccoli Decision

After all the press that broccoli and the Affordable Care Act has received over the past couple of months while waiting for the SCOTUS decision on the Affordable Care Act, I have dubbed it "The Broccoli Decision" after the question about whether or not finding the Act constitutional under the Commerce Clause would pave the way for the Court to find that Congressional mandates on grocery shopping and other healthy activities were also Constitutional.

On June 28, 2012 Chief Justice John Roberts, in a 5-4 decision made it clear that SCOTUS was not interested in breaking new Constitutional Law ground and finding the ACA constitutional on the Commerce Clause arguments.  Even though 4 of the Justices felt that the individual mandate was constitutional under the Commerce Clause, they did not represent the majority, even though the Act was upheld.  Roberts spoke out against the individual mandate and indicated that if the supporters of the Act had only defended its constitutionality on the basis of the Commerce Clause, he would have ruled that it violated the Constitution, sided with the other four Justices, and struck it down on those grounds.  He wrote in his opinion:

"Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority."

He went on to say that finding the Act constitutional under the Commerce clause would "compel" people to act, which comes perilously close to legislating for the general welfare - a power reserved to the states under the doctrine of state "police powers." The line between taxing and spending for the general welfare and outright legislation for the general welfare is a narrow line with a very steep drop-off.  In his remarks and his written opinion, the Chief Justice made it clear that he did not find the Act constitutional under the provisions of the Commerce Clause.  The early Tweets and postings by CNN and other news organizations indicating that Roberts struck down the "individual mandate" were correct even though the Act was ultimately upheld.  In his remarks to the press, Roberts expressed his concern that if the Justices were to find the Act constitutional under the Commerce Clause, it would open the door to regulating specific individual behaviors under the Commerce Clause, even in situations where individuals were choosing not to act.

While I am pleased and relieved on a personal level to know that the Act was upheld and many Americans (my daughter included) will not be denied health care for circumstances beyond their control, I am even more relieved that Chief Justice Roberts found that the Act was not constitutional under an expansion of the Commerce Clause.  Many of my more liberal friends have insisted that a win is a win, and what does it really matter that it was found Constitutional as a result of the tax provision rather than the commerce provision?  My answer to them: it matters a lot.

Many private actions that we take for granted - what food we buy (broccoli - to use the example picked by SCOTUS), where we worship, what car we choose to drive, and what organizations we will support with our money and our time all impact commerce in one way or another.  It is foolish to believe that granting or recognizing the power of the government to compel private action in this matter would be limited only to this matter.  That's not the way that legal precedence works.  Once created, precedence is then used to justify other laws and actions which can have unexpected and unforeseen consequences.

An example of this is the recognition of corporations by the federal courts as legal "persons."  That precedent opened the door to allowing corporations to make donations to political campaigns and fund special interests.  It is likely that when corporations received legal recognition as persons, those who supported the idea did not fathom that this decision would open the door to recognizing them as "persons" for the purposes of Free Speech and campaign finance laws.  Yet, because the precedent had been created to treat corporations as legal persons, it allowed the Supreme Court to uphold the law in the Citizens United lawsuit, even though there was strong public sentiment against the law.

The recent anger and outcry from the public regarding the Citizens United decision in Montana underscores what happens when "We The People" feel like the fairness and impartiality of the Federal Courts have been compromised by special interests and political gain, even in situations where precedent not only allows it but may also require it.  The Montana ruling is as much about the power of legal precedence and the need to uphold the integrity of the legal process as it was political maneuvering and legitimizing special interests.  Unfortunately, sometimes protecting the integrity of the precedent allows for manipulation and exploitation of the process.  Once rights are granted, it is very hard to take them away again.  The State of California found that out when the 9th Circuit Court found that California violated Federal equal protection provisions when it took away from gays and lesbians the right to get married after it had already recognized their right to marry. The Federal Court found California's constitutional amendment limiting marriage to only a man and a woman as the removal of a fundamental right that had previously been granted to all citizens of California regardless of their orientation.  In its opinion on Prop 8, the 9th Circuit found that a state does not have the right to take away a fundamental right once it has been granted, even though the voters had approved the constitutional ban and had arguably followed the required due process.

In choosing to speak out against the "individual mandate" and instead uphold the law through the tax argument that was put forward by the Obama Administration, Roberts struck a blow for the restoration of individual liberty and a more conservative and rational interpretation of the constitution and the constitutional limits on the powers of the Legislative and Executive branch.  Again, from Chief Justice Robert's opinion:


"The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

We, the citizens of the United States, can reasonably judge when the law requires us to do something, or when it tells us we must follow it or pay for the privilege of disregarding it vis-a-vis a fine or a tax.  We are suspicious of any law that requires us to act in a particular manner or purchase a specific produce, even if it is for the good of the whole.  If the Commerce Clause had been used as the majority justification for upholding the Affordable Care Act, it is reasonable to believe that a significant percentage of the American Public - both Democrat and Republican - would have felt that the court bowed to special interests and failed to uphold the values of individual liberty, freedom, equality, and self-determination that we collectively as a nation hold as a sacred trust between ourselves and our elected leaders.   We would have felt a betrayal of our core identity as a nation and the values that created the Constitution and the foundation of our government. 

These values of individual freedom and self-determination are embodied in our Constitution and the body of  Constitutional Law that continues to define and shape its boundaries.  We, as a nation, expect, and may reasonably demand, that the highest court of the land follow its precedents, construction, and tradition when weighing whether or not a law is Constitutional.    We trust that our elected officials, and those that they appoint to represent the citizens of the United States, acknowledge that tradition and recognize their duty to uphold it, regardless of the political cost.  Today, Chief Justice Roberts showed that he took that responsibility seriously when he refused to uphold the Act under the Commerce Clause, yet recognized the injustice that would be done if the taxpayers continued to foot the bill and subsidize health care for those who were not insured.  He found that even though the word used in the Act was "penalty," it was at its heart a fine or tax on those who chose not to purchase health insurance, and followed the general guidelines as other taxes and penalties assessed and collected by the IRS.

Regardless of whether or not Chief Justice Roberts' actions were politically motivated or not, it is inescapable that his refusal to find the Act constitutional under the Commerce Clause and only found it constitutional under the more narrow and well-defined Taxing and Spending provision created an important precedent that limited federal powers and preserved individual liberty.  Individual freedoms are not only found in the Bill of Rights, they are woven throughout the entire fabric of the Constitution.  The Founding Fathers were deeply suspicious of any law that required specific and affirmative action on the part of private citizens.  They also were skeptical that the government would voluntarily limit its own power, especially when it believed it was acting in the best interests of the citizenry.  The Founding Fathers knew from experience that legislating for the general welfare was a dangerous precedent to set, because the definition of what was beneficial was easily swayed by political and financial gains.  It is reasonable to believe that the Founding Father's would have seen the merits of the "individual mandate" yet would have felt that it compromised individual liberties beyond tolerance.

There are days when I question whether or not this country is on the right track.  There are times when I question whether or not the system is rigged, that everything we stand for as a country is built on a house of cards, and that federal justice system is a just scapegoat for the political whims and interests of those in power.  Some days I wonder if the Constitution really is a living document and "We the People," are more than just pretty words on an antique piece of stationery. 

Thanks to Chief Justice John Roberts and today's historical decision, today was not one of those days.