Joigny, France, 12 pm
Category: The Dish
Perspective, Please, Ctd
A reader writes:
Count me with you in the sanguine camp about the Hobby Lobby ruling. The hysteria over this decision baffles me, though perhaps it shouldn’t – it’s extremely easy for the media to place what happened in the context of pre-existing narratives like the “War on Women” or the nasty bigotry of the religious right than to sift through and explain complex legal reasoning. At any rate, it’s worth pointing out that most of the dissents featured here are factually wrong.
To explain why, let’s turn to Eugene Volokh’s “plain English” rendering of the majority’s decision, which might be the most helpful single explanation of what happened. The entire piece (and it’s not long) should be read, but his final point is this:
When both the government’s compelling interests and religious objectors’ religious beliefs can be adequately accommodated, Congress said (in enacting RFRA) that they should be accommodated. But Congress also said that these decisions must turn on the facts of each exemption request, and the options available for accommodating such accommodation requests. In future cases — for instance, ones involving race discrimination in employment, or insurance coverage for vaccination or blood transfusions — the result might be different.
So, let’s take a deep breath and walk through this. The reader who claimed that this decision means that “only the religious views of abortion opponents count” is wrong. They counted here because those were the people asking for an exemption. Other types of exemptions will stand or fall on their own merits, and will depend in part on how difficult (or not) such requests are to accommodate. Proceeding in this fashion is what the Religious Freedom Restoration Act requires.
This leads to a second point. Your reader who compared this to the Lawrence decision could not be more off the mark.
That case dealt with matters of constitutional interpretation – it established a precedent in the fullest sense of the term by saying what liberty and privacy meant under the Due Process Clause of the 14th Amendment. As such, its impact really has been sweeping, because when you say what the Constitution means, you provide a standard against which to judge any particular federal or state law. The Hobby Lobby case, on the other hand, dealt with a statutory question – interpreting a law passed by Congress. It makes no big claims about the meaning of religious liberty, or what the First Amendment demands in situations like Hobby Lobby’s. If Congress repealed the RFRA tomorrow, the basis for this exemption would be removed.
Similarly, the reader who panicked that Alito “didn’t actually shut the door on another closely held company making an RFRA claim that mandatory coverage of blood transfusions or vaccines abridges religious freedom” doesn’t know what he or she is saying. Alito couldn’t do that, because, again, the RFRA requires the courts, as Volokh put it, to “sort through religious exemption requests” as they are made. Without the facts of those possible exemption requests, the Court really can’t say much about them. In the future, closely held companies can ask for whatever exemption they want – how you could forbid exemption requests, ahead of time, from simply being made is beyond me – and those requests, again, will be dealt with at that time according to the particulars involved, from the nature of the burden imposed to the reasonableness of the accommodation sought.
I’m convinced most of the people wetting themselves over this decision are doing so because, in their ignorance, they assume all SCOTUS decisions are like Lawrence or Windsor or some other “big” decisions on hot button issues that render a judgment on what the Constitution means. Hobby Lobby was not that type of decision.
Another reader:
Some of the comments regarding the Hobby Lobby decision seem to be driven a bit by emotion and ideology than a understanding of precedent. One reader wrote:
In that majority opinion, Justice Scalia said Smith had no constitutional right to exercise the religious practice in question (use of peyote in a Native American ritual). Or rather, he said the state of Oregon’s interest in preventing abuse of peyote outweighed Smith’s religious freedom.
That’s not the best way to characterize the decision of the Court in Smith v. Oregon. The litigants in the case were denied unemployment benefits because they were fired from their jobs as drug counselors for the use of peyote in religious ceremonies. Because they were fired for job-related misconduct, they couldn’t collect the benefits. The Court held that this generally applicable law would not consider an exception for this religious practice.
Scalia and the Court resurrected what is often called the belief action distinction or dichotomy. Simply, this means that the First Amendment allows individuals to believe what they wish. But religious activities could be regulated as long as the regulation was neutrally applied. So the Court did not declare they litigants had no right to exercise the religious practice in question. They just couldn’t collect unemployment benefits.
Now you can certainly argue that “neutral” laws might prove disadvantageous for minority groups. But if RFRA had not been passed by Congress as a remedy to this decision, you would need only to apply the Court reasoning in Smith. Was the ACA a neutrally drafted law? Likely the Court would have rules yes – the ACA was not passed to force devout Christians who abhor abortion to allow contraceptive practices that seem to promote the end of fetal life. Hence, Hobby Lobby may have lost today (if of course the Court was consistent). Hobby Lobby would not have been granted an exception to a neutral law.
But RFRA was passed by Congress to allow for the devout to avoid having to follow general laws of neutral applicability. RFRA demands that the Court evaluate whether there has been a substantial burden on the Free Exercise of religion. If the answer is yes, Congress needs to demonstrate a compelling justification for the burden that is narrowly tailored. Alito suggested that there was a compelling justification. But then he argued that the ACA did not use the least restrictive means (narrow tailoring) to fulfill the compelling interest. Remember, the Court noted that if the federal government wants to provide the benefits, it can. In that regard, Hobby Lobby still loses. Also remember, the Court was conducting statutory interpretation here – not constitutional interpretation.
The other issue to keep in mind is that in recent years, the Court applied the Free Exercise clause to protect minority religions at the hands of minorities, including Santarians and those who import hallucinogenic for religious ceremonies.
(Photo: Supporters of employer-paid birth control rally in front of the Supreme Court before the decision in Burwell v. Hobby Lobby Stores was announced June 30, 2014 in Washington, DC. The high court ruled 5-4 that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violated a federal law protecting religious freedom. By Chip Somodevilla/Getty Images)
Poetry That Gets A Bad Rap
McWhorter says poetry is more popular than ever, but most people just don’t recognize it:
Rap is indeed “real” poetry. It rhymes, often even internally. Its authors work hard on the lyrics. The subject matter is certainly artistically heightened, occasioning long-standing debates over whether the depictions of violence and misogyny in some of it are sincere. And then, that “gangsta” style is just one, and less dominant than it once was. Rap, considered as a literature rather than its top-selling hits, addresses a wide-range of topics, even including science fiction. Rap is now decades old, having evolved over time and being increasingly curated by experts. In what sense is this not a “real” anything?
The only reason rap may seem to nevertheless not be “real” poetry is a skewed take on language typical of modern, literate societies: that spoken language is merely a sloppy version of written language. “English,” under this analysis, is what’s on a page, with punctuation and fonts and whoms and such. Speech is “just talking.”
That means that to us, poetry is written poetry, that which sits between covers and is intended to be read, quietly, alone, with tea, likely chamomile. Never mind that in fact Jay-Z has released a magisterial volume of his lyrics as a book: generally, rap is intended to be heard on the fly, often in a concert arena. Surely there is a key distinction between that and the strophes of John Berryman or Gwendolyn Brooks? But if there is, it’s a matter of style and tone, not basic classification.
On the above music video:
Let’s not get it twisted—the Cam’ron of the forthcoming Federal Reserve isn’t the same person who, earlier this century, became the central mythological figure of Harlem. But, when you put him in the right hands—in this case, the nimble duo of A-Trak and Just Blaze—the resulting product is more than enough to release a flood of pent-up dopamine. Lines like “Mommy backed up and said she see the difference/ “You’re mature, handsome, mixed with a lot of ignance” will do that to you.
Kurdistan’s Moment? Ctd
The president of Iraqi Kurdistan, Massoud Barzani, has announced plans to hold a referendum on independence:
[A]nnouncing a Kurdish independence vote during an interview with the BBC, Barzani said a referendum would only confirm what is clear already—namely that Iraq has been “effectively partitioned now” following the territorial gains by the self-declared Islamic State (IS), formerly known as ISIS, the al-Qaeda offshoot which has proclaimed an Islamic caliphate in Iraq and Syria. He added: “Are we supposed to stay in this tragic situation the country’s living? It’s not me who will decide on independence. It’s the people. We’ll hold a referendum and it’s a matter of months.”
The Kurdish leader’s remarks drew a sharp denunciation from the central government in Baghdad, which dubbed the planned referendum unlawful. But with Iraq’s security forces in disarray and unable to roll back the Sunni insurgency, there is little Baghdad can do to stop the Kurds from breaking away, unless it receives grater military assistance from Iran.
One of the factors allowing Barzani to make this bold move is that Turkey has softened its longstanding opposition to an independent Kurdistan. Marc Champion puts this down to next month’s presidential election, in which incumbent Erdogan may need Kurdish votes to secure the mandate he’s looking for:
May’s local elections were a dry run for the presidential race, in that both Erdogan and his opponents turned the polls into a referendum on him. Erdogan’s ruling Justice and Development Party won 43 percent of the vote, a good result but not the majority he needs to win the presidency in the first round. The two main opposition parties together won 44 percent.
The even split between Erdogan and the main opposition means that Turkey’s Kurds will be the kingmakers. For them, any concern over Erdogan’s authoritarian bent pales next to securing an independent Kurdish state in Iraq and a better deal for themselves in Turkey. Erdogan is letting them know he is the man to deliver both.
Goldblog urges Obama forcefully to champion the cause of Kurdish “liberation”:
For two decades, the Kurds have shown themselves to be the most mature and responsible entity in Iraqi politics, which is one reason American officials are panicked by the thought of their permanent departure. A Kurdish exit will promote instability, the thinking goes. But what the region has now isn’t stability. What’s there, among other things, is an institutionalized injustice, an injustice at times exacerbated by U.S. policy. …
The Kurdish leadership is far from perfect; corruption is a serious problem, and Kurdish parties are incompletely committed to democratic ideals. But the Kurdish autonomous zone is Switzerland compared to the rest of Iraq, and the rest of the neighborhood.
But Adam Taylor warns that the situation is more complicated than it looks:
The Baghdad government has vocally opposed a referendum (“The government doesn’t accept anything outside the constitutional way, which was voted on by the Kurds,” an adviser to Maliki has told Bloomberg News) and the vast majority of non-Kurdish Iraqis also oppose it. …
Even the Kurdish people don’t necessarily represent a united front. Kurdish groups in other countries, notably Turkey’s Kurdistan Workers’ Party (PKK), have long called for a united Greater Kurdistan rather than separate states. Even Iraqi Kurds aren’t as united as it might appear, with much of the country split between the Kurdistan Democratic Party and the rival Patriotic Union of Kurdistan, both of whom operate their own security forces (the two parties fought a three-year civil war in the 1990s but have a power-sharing agreement now).
Previous Dish on the prospect of an independent Kurdistan here.
Map Of The Day
The latest Snowden leak lists the countries where the NSA is allowed to spy, which is to say pretty much everywhere:
Presumably, the NSA preemptively asked for (and got) authority in most of these countries before it had a specific reason. Although, it’s certainly possible that at some point the NSA decided it really needed explicit permission to spy in San Marino, Saint Lucia, the Grenadies, Samoa, Palau, and other island nations that do not present an immediately obvious intelligence draw.
The second thing you’ll notice is the only four nations not included on the list: the United Kingdom, Canada, Australia, and New Zealand. (There is also a fifth, South Sudan, although it was not yet independent as of 2010 and I’d bet everything I own that they’re now on the list.) Those four countries, all fellow Anglophone nations of significant English descent and former members of the British Empire, are members with the United States in an agreement known as 5-Eyes. … But the vast, vast majority of the world is not part of 5-Eyes, and that means that they’re subject to NSA spying on their government, whether they like it or not.
Waldman considers how the rest of the world must be reacting to this news:
I suspect that when most Americans hear that we’re spying on people’s phone and e-mail conversations in almost every country in the world, they think, well, that’s just what we have to do — we’re the United States. As citizens of the global hegemon, we take certain things for granted, like the fact that our soldiers will be stationed in dozens of countries around the globe, or that everyone everywhere should speak English. …
But we should be aware that if you live in another country and you hear that the United States might be reading your e-mails — or that, in what seems to be a test run for later application in other places, the NSA is recording the audio of literally every cellphone conversation in the Bahamas — you’re going to be uncomfortable, to say the least, about the reach of U.S. power. I’m not talking about violent, flag-burning anti-Americanism, but about a far more common feeling, widespread even among people who like American music and movies and share many of our values. It’s the feeling that the United States treats the rest of the world like its subjects, people whose liberties and sometimes even lives can be swept aside whenever we find it in our interest.
Ukraine Unravels Again
Self-Defence Forces in Ukraine get fresh supply of weapons from a generous benefactor . pic.twitter.com/wK1fFPaK6R
— joe.m (@joeman42) June 25, 2014
Anna Nemtsova checks in after President Poroshenko cancelled a short-lived ceasefire with Russian-backed separatists on Monday night. His government is now talking about sealing the entire border:
As fighting continues in the east, including within the city of Donetsk, Ukrainian authorities understand that a conventional Russia invasion remains possible, which would represent an escalation of the covert tactics now in play between the Russian army and local militants. Andiy Parubiy, the secretary of the National Security and Defense Council, said on the television show Freedom of Speech: “We understand that it can happen at any monument, on any night.” Despite Tuesday’s presidential phone call to discuss de-escalation, Ukrainian authorities prepared for a more serious military operation to re-enforce the troops fighting in Luhansk region, snug against the Russian border.
Leon Aron doesn’t see what choice Poroshenko had but to end the ceasefire, given the “cat-and-mouse game” Moscow is playing:
Pro-Russia forces attack symbolically high-value targets (e.g. an airport, or an administrative building); Kiev attempts to retake the locations; Russia condemns the efforts as the “killing of peaceful civilians” and demands that Kiev “stop attacking its own people”; Kiev declares a unilateral a ceasefire; Vladimir Putin voices support for “a peaceful resolution of the conflict that would take into account the wishes of the Russian-speaking citizens of Ukraine”; the rebels “ignore” his calls and continue to shoot down Ukrainian planes and helicopters; the ceasefire collapses.
Confronted with a horrible moral choice of ceding sovereignty over its own land or engaging in violence trying to reclaim them, Kiev has chosen the latter. It is hard to see how any government would have acted differently under the circumstances.
There are signs, however, that Putin is unwilling to escalate the situation further:
Some experts say Putin faces internal opposition from pro-war forces who think he should be more assertive in supporting east Ukraine’s beleaguered rebels. “Everybody wonders why Putin isn’t using troops [to back the rebels],” says Sergei Markov, director of the pro-Kremlin Institute of Political Studies and a frequent Kremlin adviser. “But Putin does understand how hard the war is, and wants to do what he can to preserve peace.”
Alexei Makarkin, director of the independent Center for Political Technologies, says that Putin’s recent shift toward a negotiated solution suggests that he recognizes that Ukraine has slipped out of Russia’s sphere of influence forever, and that he must try to salvage what he can of Moscow’s badly shredded relationship with the West.
The Bloomberg editors blast European leaders for not standing up to Putin:
They had set an ultimatum for Putin on Friday: Rein in Russian-backed separatists in Ukraine and agree to seal the border by Monday or face “significant restrictive measures.” The deadline arrived, Putin ignored it and … EU leaders agreed today to think about it. Some European countries, apparently, thought the situation in eastern Ukraine remained too uncertain to make a decision. If so, they’re playing right into Putin’s hands. …
Putin knows the likelihood of the EU imposing meaningful economic sanctions is low — so long as he doesn’t launch an outright invasion of Ukraine. To show Putin he’s wrong, the EU needs to follow through on its ultimatum by sanctioning Russian corporations and other well-defined economic targets, thus demonstrating its willingness to go further. So far, the EU has yet to give Putin a reason to take its threats seriously.
But James Carden argues that Ukraine’s new association agreement with the EU was a mistake that will only exacerbate tensions, and that the US is foolish to stand behind it:
Because of the specific foreign-policy and security protocols embedded within the EU-Ukraine Association Agreement, and because NATO membership usually follows on the heels of EU membership, the agreement will further exacerbate the “security dilemma” vis-a-vis Russia, Ukraine and NATO. And so we can expect Russia to respond in a number of ways, some of which we have already seen in its anticipation of the coming of the Agreement: Russia will align more closely with China; Russia will move to destabilize parts of eastern and southern Ukraine; Russia will increase military and defense spending; Russia will likely move to strengthen the Collective Security Treaty Organization (CSTO), Russia will likely attempt to add a political and security dimension to the Eurasian Union.
A Triumphant Loss
Even though Belgium’s 2-1 victory in extra time yesterday knocked USA out of the World Cup, Kornhaber celebrates our goalie Tim Howard, whose record 16 saves put an American mark on the tournament:
After watching America lose to Belgium in agonizing and thrilling fashion on Tuesday, it’s impossible to deny what I (and I suspect even Coulter) realize, deep down: If you have a problem enjoying soccer or any other popular athletic contest, that’s on you, not the sport.
Exhibits a, b, and c to that effect were Tim Howard, who nuked the notion that soccer is boring, random, and devoid of true stars (Coulter: “Do they even have MVPs in soccer?”). On the page, the fact that the U.S. keeper set a World Cup record for saves in a game (16) is just another statistic that just makes my eyes glaze over. But when I watched the process by which that statistic was achieved—really watch, beer in hand, surrounded by fans, aware of what’s riding on the outcome—the feeling was entirely different.
A compilation of Howard’s saves after the jump:
But Henry D. Fetter, prior to the game this week, tempered any excitement that soccer is finally becoming a major American sport:
Even before the World Cup got underway, soccer historian David Goldblatt told The Economist “football is taking off in America.” And even before that, writers were making predictions:
- “U.S. soccer on the brink.”
- “Now everyone believes in soccer’s future, a general belief that soccer has all the irresistibility of a sport whose moment has come.”
- “Within 10 years ‘soccer will not only be the No. 1 sport in the U.S. but also the major soccer center in the world.’”
- “Father used to take their kids to the football game. Now the kids, they take their father to the soccer game.”
- “Soccer is on the verge of exploding.”
An impressive compilation of concurring opinions, to be sure. But, not to spoil the current celebration, those quotes are from 1968, 1975, 1977, 1980, and 1993, respectively. And even in those years, it was hardly a novelty to be bullish about the prospects for the sport in this country. “Soccer in America is gaining in popularity … the game is established on a firm foundation and the future of the sport in the United States is assured” the New York Times recorded—in 1924.
And Kareem Abdul-Jabbar, in a less Coulterish way than Coulter, says the sport will never really catch on:
[S]occer doesn’t fully express the American ethos as powerfully as our other popular sports. We are a country of pioneers, explorers, and contrarians who only need someone to say it can’t be done to fire us up to prove otherwise. As a result, we like to see extraordinary effort rewarded. The low scoring in soccer frustrates this American impulse.
We also celebrate rugged individualism, the democratic ideal that anybody from any background can become a sports hero. We like to see heroes rise, buoyed by their teammates, but still expressing their own supreme individual skills. Certainly soccer has its celebrated stars, from Pele to Beckham, but those skills seem muted on TV where we’re often looking at small figures on a large field and therefore these feats appear less impressive than they really are.
Could Howard change that? Dunno. But he sure can grow a sweet beard.
Perspective, Please
Below, I reflect on the astonishing success of the marriage equality movement in the last two decades. On an issue that became a must-win for the Christianist right, the American people have delivered a resounding rebuff. Think also of other profound shifts in social policy during the Obama administration: universal health insurance, to take an epic example; the shift in drug policy away from mere law enforcement; the speed with which marijuana legalization marches forward; the rise and rise of women in the economy and the academy and politics. Then consider the broad demographic shifts – the sharp increase in the religiously unaffiliated, the super-liberal Millennial generation, the majority-minority generation being born now, and a bi-racial president possibly followed by a woman president. When I see the panic and near-hysteria among some liberals in response to the Hobby Lobby ruling, I have to wonder what America they think they’re living in.
Damon Linker notes how over the long run, the religious right is still losing big – and this is the proper context to understand a ruling like Hobby Lobby:
Where once the religious right sought to inject a unified ideology of traditionalist Judeo-Christianity into the nation’s politics, now it seeks merely to protect itself against a newly aggressive form of secular social liberalism. Sometimes that liberalism takes the relatively benign and amorphous form of an irreverent, sex-obsessed popular culture and public opinion that is unsympathetic to claims of religious truth. But at other times, it comes backed up by the coercive powers of government.
That’s how the Hobby Lobby case needs to be understood: as a defensive response to the government attempting to regulate areas of life that it never previously sought to control … From advancing an ideological project to transform America into an explicitly Catholic-Christian nation to asking that a business run by devout Christians be given a partial exemption from a government regulation that would force it to violate its beliefs — that’s what the religious right has been reduced to in just 10 years.
And this is where I part company with some of my fellow supporters of universal healthcare and marriage equality. Although I disagree with Hobby Lobby’s position on contraception (I think widespread contraception is the best bulwark in modernity against the much graver problem of abortion and that sex need not be about procreation at all), I still live in the same country that they do. And in cases where values collide, I favor some sort of accommodation. Call me a squish; but I want to live in a civil polity, not a battlefield of absolutes. (As for marriage equality, I feel the same way. I just do not believe anyone’s religious freedoms are in any way curtailed by civil marriage licenses for gay people; and that no devout person’s marriage is affected either.)
Or look at it this way: with the ACA, for the first time ever, all insurance covers a wide array of contraception options.
That’s a huge step forward for social liberalism, and it was allowed by the Roberts court. A few organizations and closely-held companies want to be exempted from that coverage for religious reasons. They just got it. The administration can still respond by crafting a compromise along the lines of that given to purely religious groups, or by other methods. Yes, there’s a precedent here that could be expanded. But, as Ross notes today, Kennedy’s concurrence suggests not by much. And overall, this battle has been decisively won by secular liberals and their allies (who include many religious people as well). What’s really being done here is negotiating the terms of surrender. And in general, I think victories are more durable if they are allied with a certain degree of magnanimity.
You can read countless screeds against this decision, for example, that nowhere even mention that for some devout people, the mandate might actually be a genuine problem of conscience. Is liberalism indifferent to the conscientious dissent of minorities? The truth is: I don’t think so. But many cannot yet see that the religious right is no longer a majority, fast becoming a small minority, unable to win at the ballot box, and needing some accommodation with respect to majoritarian rule.
That used to be a liberal value. And I hope, before too long, it will again.
(Photo: Supporters of employer-paid birth control rally in front of the Supreme Court before the decision in Burwell v. Hobby Lobby Stores was announced June 30, 2014 in Washington, DC. By Chip Somodevilla/Getty Images.)
The Intensifying Immigration Wars
Waldman analyzes the president’s Rose Garden speech from Monday, calling it “a pretty blatant thumb in the opposition’s eye”:
Obama is basically accurate in his characterization of Republican arguments, even if he portrays them in an uncomplimentary way. They do indeed argue that they won’t pass an immigration bill because they don’t trust the president to enforce it properly. Which is just an invitation for him to take executive action, making them more angry, to which he can respond, I’m only doing this because you won’t pass a bill. And since Democrats have worked just as hard to convince the public that Republicans are insanely obstructionist as Republicans have to convince the public that Obama is a tyrant, the president’s response isn’t hard to explain to people; they understand by now that Republicans are opposed to passing immigration reform. So the places where Republicans have been the most recalcitrant are those where Obama is most likely to be emboldened to move aggressively.
Vinik outlines some ways the president could tackle immigration without Congress. But rather than making an end run around the House GOP, Connor Simpson suggests Obama might actually be trying to force their hand:
Earlier Monday, the President sent a surprise request to Congress asking for roughly $2 billion to deal with the influx of children attempting to cross the border illegally from South America. While children from Mexico can be deported fairly easily, immigrants who travel from as far as Guatemala, Honduras and El Salvador are much more difficult and expensive. The move will likely cause chaos on Capitol Hill, but could potentially force the House to finally deal with immigration reform.
It’s a catch-22 for politicians:
vote to deport a bunch of children and solve a very real problem, or vote to deport a bunch of children and look heartless in the eyes of your constituents. Hard line immigration reform opponents will love it regardless.
Chait calls the House failure to act on immigration reform “a fascinating case study of a party unable to act on its recognized political self-interest”:
The GOP’s worst problem is that Obama’s unilateral relaxation of immigration enforcement will add a newer and more potent dimension to the immigration issue. No longer will Republicans merely have to promise to oppose reform legislation. They will have to promise to undo what Obama has done. …
And so Republicans may well find themselves in the position of watching their nominee pledging to prosecute or deport immigrant families or children pardoned or left alone by Obama. The only way their friends, neighbors, or relatives who happen to be legal citizens can spare them will be to vote for Clinton. It may have seemed that the Republicans’ standing with immigrant communities had sunk to a new low in 2012, but in 2016, things could actually get worse.
Jonathan Bernstein, on the other hand, argues that the stakes are not so dire for the Republicans in 2016 – or so they seem to believe, at least:
In the long run, the electoral danger of keeping immigration reform high on the agenda is that it could keep Hispanics in the Democratic camp for generations, in part by encouraging them to use ethnicity as their primary political identification. And if that happens, Republicans will risk turning into a long-term minority party. But the electoral effects are much murkier in 2016. That makes it even more difficult for pro-reform Republicans to make the case, particularly as politicians generally aren’t known for their long-term electoral thinking.
Now, on the policy merits, Chait (and Obama) have it right: the possibility of White House action has always made a compromise the best choice for Republicans if what they care about is policy substance. But this set of House Republicans, and the party they represent, isn’t known for putting policy substance over symbolism.
But Francis Wilkinson notes that this could all blow up in Obama’s face:
Obama is in a bind, and he won’t be escaping it soon. He promised that if the House didn’t act on immigration, he would. But if he eases deportations while thousands of alien kids are entering U.S. custody, he may well inspire a ferocity from House Republicans that we haven’t seen since the days of the debt-ceiling fiasco. Only this time, Republicans will point to Obama’s tardy response to a genuine crisis, rather than their own ideological make-believe, as the proximate cause. … By setting himself up as the alternative when and if legislation failed, Obama made himself a target of immigrant desires that he is almost certainly incapable of satisfying. He now faces a backlash from foes and friends alike.
Yglesias declares immigration reform no longer a “special” issue meriting bipartisan action. Now, he believes, “like other liberal priorities it’ll happen if Democrats win a sweep election but not otherwise”:
The more interesting question is what happens to Republicans. Will they simply cede the faction of the business community that’s hungry for immigrant labor to the Democratic coalition? Or will they push harder for a new formula — something like the SKILLS Act that would allow in more highly-skilled workers in exchange for slamming the door on family reunification for less-skilled (mostly Latin American) migrants even tighter — that would try to split up the existing interest group coalition for reform.
But whatever happens, it won’t be special. We’ll see continued trench warfare through executive action and judicial decisions as long as the legislative branches are divided. And then when one party or the other gains a breakthrough, some kind of reform will pass largely on a party-line vote.
Which is a bit odd, given the growing public consensus around liberalizing immigration policy. Although a Gallup poll last week found anti-immigration sentiment on the rise, Aaron Blake examines the long-term trends to find that this increase “looks more like a blip on the screen than a significant and lasting shift.” Two data points:
1) A May poll from the New York Times showed 46 percent of Americans thought all immigrants should be welcomed to the United States. That’s up from 33 percent in 2010, 24 percent in 2007 (the last time immigration reform failed) and around 20 percent in the mid-1990s. The percentage who say there should be no immigration has also dropped to 19 percent.
2) The same poll showed the percentage of Americans who say immigrants contribute to this country has risen significantly over the past three decades. While Americans in the 1980s and 1990s said immigrants were more likely to cause problems than contribute, it’s now 66-21 in favor of contributing. And the numbers continue to rise to this day.
KY Lubricates The Case
I’ve been waiting a long time to write that headline. But seriously, folks, the ruling in Kentucky by a GHW Bush appointee is not just a victory for marriage equality; it’s the equivalent of a knock-out. It effectively says that there is no need to worry at all about the level of judicial protection applied to the gay minority – rational basis? heightened scrutiny? strict scrutiny? – because the case for banning gay marriage is so devoid of any logic it should merely be laughed out of court. Money quote:
These arguments are not those of serious people. Though it seems almost unnecessary to explain, here are the reasons why. Even assuming the state has a legitimate interest in
promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses.
Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have … The state’s attempts to connect the exclusion of same-sex couples from marriage to its interest in economic stability and in “ensuring humanity’s continued existence” are at best illogical and even bewildering.
That, of course, was also the damning conclusion of the Prop 8 trial. If you actually put the logical arguments for banning marriage equality to a rational test, they don’t actually exist. There are no apparent costs to this reform at all:
Those opposed by and large simply believe that the state has the right to adopt a particular religious or traditional view of marriage regardless of how it may affect gay and lesbian persons. But, as this Court has respectfully explained, in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted …
Lyle Deniston notes:
In February, in an earlier phase of the judge’s review of the Kentucky ban, he ruled in February that it was unconstitutional for the state to refuse to recognize same-sex marriages of Kentuckians that were performed in other states. That ruling is now under review by the U.S. Court of Appeals for the Sixth Circuit.
So this is not over in Kentucky. But the fact that every single marriage ban challenged since Windsor has been struck down is telling. Allahpundit continues to make the following flawed point:
We’ve gone from this issue being a fringe preoccupation of the left 20 years ago to the federal bench slam-dunking it today, thanks in large part to Kennedy and Windsor.
Marriage equality was absolutely not a “fringe preoccupation of the left” 20 years ago. It was a fringe preoccupation of the gay right and a handful of gay liberals – and largely opposed by the gay left. It was then and is today a centrist reform that any sane and reasonable conservative would support – as many have in America and around the world. Which is why it gives me particular pleasure to note that this particular judge was nominated by none other than Mitch McConnell. It is a victory for conservatism and reason – two things the current GOP has sadly a rather loose grip on.

When both the government’s compelling interests and religious objectors’ religious beliefs can be adequately accommodated, Congress said (in enacting RFRA) that they should be accommodated. But Congress also said that these decisions must turn on the facts of each exemption request, and the options available for accommodating such accommodation requests. In future cases — for instance, ones involving race discrimination in employment, or insurance coverage for vaccination or blood transfusions — the result might be different.
