The Wall Street Journal editorial board is continuing to pretend that the EPA is acting against the law by regulating coal pollution, despite repeated Supreme Court rulings that conclude otherwise.
On April 29, the Supreme Court ruledin a 6-2 decisionto re-instate the EPA's Cross-State Air Pollution Rule, which regulates air pollution that crosses state lines and "significantly" prevents neighboring states from achieving national air quality standards. The rule, which is part of the Clean Air Act by way of the "Good Neighbor Provision," was delayed in 2011 for further review after being challenged by a major coal-fired operator -- to the delight of the Wall Street Journal, which lauded the decision to delay for showing "how out of bounds the cross-state regulation is." The board decided that the Supreme Court "should overturn [the Cross-State pollution rule] for violating the federalist intentions of Congress," adding it would "to show this increasingly rogue agency that it can't rewrite the law as it pleases."
Now that the rule has been reinstated (counter to the wishes of the Journal) in EPA v. EME Homer City Generation, the paper is scrambling to find wrongdoing. The board published an editorial titled "The EPA Unchained" recycling its own faulty arguments that concluded with the fear that "the Obama EPA will feel even less bound by legal restraints, if that's possible." Its claims, however, are extremely misguided.
The regulations of smog and soot pollution will yield up to $280 billion in health benefits nationwide by preventing hospital visits and avoiding lost work days, according to the EPA's cost-benefit analysis. The human benefits are just as stark, with The American Thoracic Society estimating the new transfer rule could prevent upwards of 40,000 premature deaths annually.
The WSJ summarily dismisses the court's defense of the EPA's use of cost-benefit analysis when considering the best regulatory action, calling it "ironi[c]" because "the EPA typically dismisses cost-benefit analysis unless a statute explicitly calls for it." However, according to an amicus brief from NYU's Institute for Policy Integrity, the EPA has been using cost-benefit analyses to guide inter-state air pollution regulations for decades. The "Good Neighbor Provision," for instance, does not explicitly call for cost-benefit analysis. The Court deferred to the EPA as the most appropriate body to determine whether or not to use cost-benefit analysis to regulate pollutants that are clearly covered by the Clean Air Act.
The board also repeated its tired claim that the EPA is "ignor[ing] the federalist obligations of the Clean Air Act," suggesting the EPA is going over the heads of individual states. But states have tried and failed at coming up with their own solutions to this interstate phenomenon, and Congress and the Supreme Court determined that the issue of cross-state pollution is an inherently nationwide problem that prompts federal regulation. As Justice Ruth Bader Ginsburg outlined in her majority opinion for the Court, the air pollution of "upwind" states is inescapably a "combined and cumulative effect" that may significantly pollute several "downwind" states at different proportions, so regulating emissions based on each individual state's pollution levels (as WSJ suggests) simply doesn't work. This was not only the conclusion of the EPA, but also of leading atmospheric scientists and air quality modeling experts, who submitted an amicus brief arguing that the WSJ's preferred solution was likely "impossible." The complexity of the scenario is illustrated by this EPA graphic showing "linkages" between "upwind" and "downwind" states in what they have called a "spaghetti-like matrix":
The revival of the cross-state pollution rule was timely -- one day after the Court's ruling, the American Lung Association (ALA) released the findings that nearly half of Americans currently live in areas with high levels of pollution from smog and soot particles. The ALA report also illustrates the necessity of the EPA air pollution rules: 18 of the 25 cities with the highest pollution rates have seen a drop in pollutants, partly thanks to the EPA regulations.
The Supreme Court has repeatedly ruled on the side of the EPA, despite WSJ's constant criticisms -- two weeks prior, the Court upheld a separate EPA rule to cut mercury emissions from coal plants. Will the newspaper continue to claim that coal pollution regulations are unlawful?
Cliven Bundy's abhorrent, racist comparison of slavery to federal poverty assistance bears a striking resemblance to common claims from conservative media, who have frequently invoked slavery to describe the supposed damage "the welfare state" has done to black Americans.
Nevada rancher Bundy, who was praised by conservative media for engaging in an armed standoff with federal agents after refusing to pay decades worth of federal grazing fees on public land, on April 19 questioned whether black Americans were "better off as slaves" or "better off under government subsidy," telling a reporter in a racist rant:
"I want to tell you one more thing I know about the Negro," he said. Mr. Bundy recalled driving past a public-housing project in North Las Vegas, "and in front of that government house the door was usually open and the older people and the kids -- and there is always at least a half a dozen people sitting on the porch -- they didn't have nothing to do. They didn't have nothing for their kids to do. They didn't have nothing for their young girls to do.
"And because they were basically on government subsidy, so now what do they do?" he asked. "They abort their young children, they put their young men in jail, because they never learned how to pick cotton. And I've often wondered, are they better off as slaves, picking cotton and having a family life and doing things, or are they better off under government subsidy? They didn't get no more freedom. They got less freedom."
As Slate's Jamelle Bouie noted, Bundy's repugnant rhetoric sounds familiar -- it's the same logic behind many right-wing criticisms of the social safety net. Media Matters has been tracking this type of offensive rhetoric for years.
During the fight over health care reform, Rush Limbaugh claimed that "It won't be a matter of whether you have coverage or don't have coverage. What'll matter is that all of us will be slaves; we'll become slaves to the arbitrary and inhumane decisions of distant bureaucrats working in Washington where there's no competition, nobody you can go to if you don't like what you hear from the bureaucrats that you have to deal with."
When Glenn Beck was a host on Fox News, he had an obsession with comparing things to slavery, including the claim that progressive policies created "slavery to government, welfare, affirmative action, regulation, control," and that "big government never lifts anybody out of poverty. It creates slaves." In 2008, Jim Quinn, the co-host of the radio show The War Room with Quinn & Rose, was forced to apologize for comparing "slave[s] in the Old South" to welfare recipients today, when he claimed that the only "difference" was that the "slave had to work for" the benefits Quinn said they received.
In his 2008 book Let Them In, The Wall Street Journal editorial board member Jason Riley argued that the Great Society programs of the 1960s were ultimately worse for black families than slavery, writing "The black family survived slavery, Reconstruction, and Jim Crow, but the well-intentioned Great Society sounded its death knell."
More recently, Riley promoted the twisted logic of George Mason University's Walter Williams (who has often guest-hosted The Rush Limbaugh Show), who claimed that because more black children live in single-mother families now, welfare "destroy[ed] the black family" more than slavery:
During Reconstruction and up until the 1940s, 75% to 85% of black children lived in two-parent families. Today, more than 70% of black children are born to single women. "The welfare state has done to black Americans what slavery couldn't do, what Jim Crow couldn't do, what the harshest racism couldn't do," Mr. Williams says. "And that is to destroy the black family."
Ted Nugent, National Rifle Association board member and a favorite of conservative media, has become infamous for his extreme racism for calling President Obama a subhuman mongrel -- but Nugent also used the 50th anniversary of Dr. Martin Luther King Jr.'s "I Have a Dream" speech to claim that the Great Society programs were "responsible for more destruction to black America than the evils of slavery and the KKK combined." In a 2011 Washington Times column, Nugent also suggested that the Democratic Party is the "modern-day slave master" to low-income Americans.
Vox's Matt Yglesias noted the irony of Bundy criticizing the government for assisting Americans through federal programs, when he himself has benefited from federal subsidies which keep the cost of grazing low for ranchers like himself. And though the abhorrent comparison of slavery to welfare is ridiculous on its face, it's worth noting that federal benefit programs have been vital in keeping Americans out of poverty -- in fact, federal programs today are cutting poverty nearly in half, whereas in 1967 they only reduced poverty by a single percentage point.
Conservative media may finally renounce Bundy and his lawless cause following his racist remarks; but they should also renounce this harmful, inaccurate comparison.
The Wall Street Journal is misleadingly defending a highly controversial and recently abandoned surveillance program that targeted innocent American Muslims.
Earlier this week, New York City Mayor Bill de Blasio announced the city planned to dismantle the constitutionally-questionable "Demographics Unit" of the New York Police Department (NYPD), a secretive program that relied on blanket surveillance and racial profiling of Muslim American communities both within and without the city. The program's indiscriminate spying on innocent Muslims on the basis of ethnicity and religion raised red flags not only among civil liberties advocates, but also among counter-terrorism experts. As The New York Times explained, the FBI was so alarmed about this CIA-initiated program that "F.B.I. lawyers in New York determined years ago that agents could not receive documents from the Demographics Unit without violating federal rules." The top FBI official in New Jersey, where the Demographics Unit conducted "surveillance of mosques and Islamic student organizations," pointed out that this widespread "police surveillance had made Muslims more distrustful of law enforcement and made it harder to fight terrorism."
Nevertheless, the WSJ editorial board was quick to defend these newly discontinued tactics.
In an April 17 editorial, the WSJ praised the former surveillance unit, calling the program "strikingly successful." The editorial went on to lament de Blasio's decision to scrap the program as "a bow to political correctness."
This is being hailed by the usual suspects as a triumph for civil liberties, but it's really a bow to political correctness that removes an important defense for a city that has stopped at least 16 terror plots since 9/11. It's also more fallout from a series of sensationalist Associated Press stories from 2011 that were riddled with distortions and have since been rebuked by a federal judge.
The result [of the surveillance program] was a strikingly successful effort, under former police commissioner Ray Kelly, to keep all New Yorkers safe. Part of that effort involved a small "Demographics Unit" (later renamed the "Zone Assessment Unit") to keep an eye on "hot spots" and "venues of radicalization," including mosques, bookstores, barbershops and other public places. The point wasn't to spy on entire communities, which the unit -- with never more than 16 officers -- lacked the resources to do in any case. It was to keep an eye on places where terrorists would seek to blend in.
Also false is the claim that the unit was ineffective. "The Demographics Unit was critical in identifying the Islamic Books and Tapes bookstore in Brooklyn as a venue for radicalization," Mitchell Silber, a former NYPD director of intelligence analysis, noted in Commentary magazine. "Information the unit collected about the store provided a predicate for an investigation that thwarted a 2004 plot against the Herald Square subway station."
Now that the 2014 midterm elections are just around the corner, right-wing media are dragging out some of their favorite attacks on voting rights, despite the fact that these myths have been thoroughly debunked.
One of right-wing media's favorite myths about class action lawsuits -- their supposedly frivolous nature -- is now permeating respectable news sources.
On March 5, the Supreme Court heard oral arguments in Halliburton v. Erica P. John Fund, a case about securities class actions in which the conservative justices could make it practically impossible for average shareholders to effectively sue large corporations who distort the company's stock price through fraud. Plaintiffs in these lawsuits -- increasingly institutional investors like large pension funds -- have traditionally been able to join together as a class action to even the odds against these deep-pocketed corporate defendants.
Right-wing media have steadily pushed the myth that these types of equalizing lawsuits are ineffective or frivolous. For example, The Wall Street Journal editorial board has long stoked fears inaccurately and inconsistently about class actions, and has been highly supportive of the conservative justices' attempts to shut the courthouse doors to this type of collective action. In a recent editorial, the WSJ attacked the shareholder lawsuits at issue in Halliburton as "economically destructive" and beneficial only to plaintiffs lawyers, who have "dined out for years on the windfall of securities class-action suits."
Based on Supreme Court precedent, securities class action plaintiffs can file suits based on the "fraud on the market" theory. This is a 25-year-old legal doctrine that assumes for the purposes of class certification that all publicly available information is reflected in a company's stock price. Rather than forcing plaintiffs at this pre-trial stage to show that they relied on any one fraudulent statement made by a corporate officer, the fraud on the market theory assumes that in a relatively efficient market, those statements affected and unjustly inflated the company's stock price. These presumptions are later rebuttable at trial, where the merits of this alleged fraud can be litigated.
Pro-business groups like the U.S. Chamber of Commerce share the WSJ's point of view that despite these decades of precedent, shareholders should no longer be able to proceed to trial as a class in this fashion. In fact, the Chamber dedicated a day-long event to the Halliburton case, calling lawsuits based on the fraud on the market theory "a situation basically directly out of a Kafka novel" because it makes it too easy for plaintiffs to bring class actions. The Chamber has been clamoring for the Supreme Court to overturn Halliburton, at least in part because it contends securities class actions are meritless and abusive. Right-wing media frequently repeat the Chamber's spin to pretend class actions are an unjustified "cash cow for trial lawyers."
This myth has been pushed so aggressively that it has cropped up in well-respected publications like The American Prospect, which recently wrote that such lawsuits are "now routinely filed by class-action lawyers any time the stock price takes a sudden dive." The Prospect also argued that "most of these [lawsuits] are frivolous," without providing evidence to support that claim.
The Department of Energy's clean energy loan program helped fuel the achievements of electric car company Tesla Motors, yet the major broadcast, cable and print media only mentioned the loan in 20 percent of their coverage of Tesla in 2013 (and in only 7 percent of coverage of Nissan's best-selling electric car, the Leaf). Meanwhile, 84 percent of coverage of Fisker, an electric car company that declared bankruptcy, mentioned its federal loan. This skewed coverage may have misinformed the public about the overwhelmingly positive success rate of the program.
Media reports on the Senate vote to renew long-term unemployment benefits established a false contrast between providing a safety net for unemployed Americans and policies designed to create jobs. In fact, experts note that unemployment benefits boost job creation and economic growth.
According to the Wall Street Journal's Peggy Noonan, if you just ignore the millions of Americans who have gained insurance through the Affordable Care Act, then it's clear that the law is a huge mess.
Over seven million Americans enrolled in health insurance through the ACA's exchanges by the end of the open enrollment period last week, a number that met the Congressional Budget Office's original sign-up estimate.
But if we "put aside" that success and "step back," Noonan argued in her April 3 column, then it becomes clear that the ACA is a "huge, historic mess." In other words, if you pretend that millions haven't been insured by the ACA, it's obvious that the law is an utter failure.
And trying to repeal this mess is comparable to fighting a "manic" sea creature underwater:
Right-wing media champions of voter purges have been quiet in response to a federal appeals court's decision that Florida officials' attempts to remove noncitizens from voter rolls clearly violated federal law, which protects citizens from these overbroad and error-riden challenges.
Shortly before the 2012 election, Florida Governor Rick Scott (R) and his Secretary of State Kenneth Detzner (R) undertook an effort to purportedly purge the state's voter rolls of noncitizens. The Department of Justice challenged the purge in court, arguing that Florida had violated federal law that prohibits states from booting voters off the rolls within 90 days of a federal election. This law is in place to prevent depriving citizens of the vote because of faulty database checks, performed without enough time to correct the state's errors.
At the time, right-wing media outlets like The Wall Street Journal and National Review Online were overwhelmingly supportive of Governor Scott and his attempts to block people from voting. WSJ's senior editorial writer Jason Riley dismissed the DOJ's challenge, since "[t]he Obama Administration sees racial animus and voter-suppression conspiracies in any Republican-led effort to improve ballot integrity." NRO contributor Hans von Spakovsky also dedicated numerous posts to the issue, calling the DOJ's lawsuit "spurious," and evidence of "politics and ideology driving the legal decision-making" at the agency "as opposed to nonpartisan, objective analysis of the facts and the law."
Von Spakovsky had even more to say on the subject. In a different post about the case in 2012, he complained about the DOJ's "lawlessness" in its attempts to restore the voting rights of affected citizens in Florida:
Time and again, the Holder Justice Department has exhibited politically driven law enforcement. But its latest instance of lawlessness is absolutely brazen.
This goes far beyond Holder's previous actions, such as belittling claims of voter fraud and trying to stop voter ID and other reform measures intended to improve the integrity of the election process. This letter would directly abet vote thieves in a key state as Holder's boss seeks reelection [in 2012].
The Wall Street Journal editorial board was quick to support a Supreme Court decision on campaign finance, in which the conservative justices once again ignored legal precedent and usurped the role of Congress to legislate complicated policy.
On April 2, the Supreme Court decided McCutcheon v. FEC (also known as "the next Citizens United"), and held that overall campaign contribution limits -- previously set at $123,200 -- were unconstitutional. Although the Court did not rule on the individual campaign limits of $5,200 per candidate in the two-year election cycle, the conservative justices struck down the aggregate limits, allowing future contributions to be spread among an unlimited amount of candidates, political parties, and PACs. Although Congress had set those overall campaign limits in the wake of the Watergate scandals to guard against institutional corruption or the appearance of corruption -- a goal repeatedly upheld by the Supreme Court -- the Court in McCutcheon ignored this precedent, judicially narrowing future regulation so that "Congress may target only a specific type of corruption -- 'quid pro quo' corruption."
The WSJ, which has been misinforming about this case from the beginning, was predictably pleased with the outcome in McCutcheon. Although the WSJ editorial board lectures about fidelity to the law when it comes to legal decisions that might affect corporate wealth, it was not so bothered at the Court's rejection of precedent in McCutcheon. In an April 2 editorial, it celebrated the decision as a win for "the core promise of American liberty" and applauded the Court for "walking back" a "historic blunder." In fact, the WSJ really only had one complaint about the McCutcheon decision: why didn't conservative Chief Justice John Roberts go even further?
In its original First Amendment sin, Buckley v. Valeo in 1976, the Court said government can regulate political contributions to limit the risk of "quid pro quo" corruption. That is, money in return for a political favor. But Congress has gone well beyond that narrow definition of corruption to include trying to limit some donors but not others or simply the amount of money in politics.
We wish the Court had gone further and overturned all of Buckley, as Justice Clarence Thomas urged in his concurring opinion. As he put it, Buckley is now "a rule without a rationale" given how much the Court has eroded its original logic. But the Justices didn't need to go that far to overturn overall donor limits, and Chief Justice Roberts prefers incremental legal progress. Justice Thomas is nonetheless a John the Baptist on political speech, and the current majority may vindicate his logic in a future case.
We hope it's soon given the pernicious doctrine laid out in the dissent joined by all four liberals. "The First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters," wrote Justice Stephen Breyer (his italics).
"Collective speech" sounds Orwellian as a legal doctrine that invites government as a leveller of free speech and is alien to the U.S. constitutional tradition. The scary thought is that the Court is only one heart attack away from gutting the core promise of American liberty.
From an April 1 Capitol Hill Hearing recorded on C-SPAN2:
Loading the player reg...
The Wall Street Journal is so excited about a lawsuit that could gut the Affordable Care Act (ACA) that it has dedicated two editorials to lauding the challenge in the past week.
On March 25, the D.C. Circuit Court of Appeals heard oral arguments in Halbig v. Sebelius, a right-wing lawsuit based on a far-fetched anti-ACA theory that could make it impossible for some consumers to obtain tax credits from the federal government to purchase health insurance. The editorial board of the WSJ considers this counterintuitive goal of a law meant to make insurance affordable the "faithful interpretation of the statute."
The central argument of the suit is that a provision within the ACA can be misread to imply consumers who buy insurance from the federal exchange are not eligible for the tax credits that make health insurance affordable. Most legal experts, as well as those who helped draft the law, agree that this was nothing more than a drafting error, not evidence of Congress' alleged intent to deny subsidies to some consumers. But because many states (particularly those with Republican governors or Republican-led legislatures) refused to set up their own exchanges, conservatives saw an opening to attack this key part of the ACA.
Halbig's legal theory was cooked up by Michael Cannon of the Cato Institute and Jonathan Adler, a contributor to National Review Online and The Washington Post's libertarian legal blog The Volokh Conspiracy. Right-wing media have joined Adler and Cannon in vocally supporting the suit, even though legal experts have soundly rejected the challenge as "an absurd distortion of the law" and lacking merit.
But The Wall Street Journal continues to have a particular affection for Halbig. On March 23, the editorial board celebrated Halbig's potential to "vindicate the rule of law" in an Obama administration it characterized as "willful[ ] in defying limits on executive power."
Its March 30 editorial was more of the same, but with even more misinformation about the legal issues underpinning the Halbig case:
Liberals keep dismissing challenges to ObamaCare, political and legal, so it's no surprise they mostly ignored last week's oral argument at the D.C. Circuit Court of Appeals that could send another case to the Supreme Court. Coming in the week the White House wheeled out its 38th rewrite of the law, Halbig v. Sebelius is even more important for the contours of executive power and the rule of law.
This ought to be a straightforward matter of statutory construction. Democrats put conditions on the subsidies to pressure Governors to join ObamaCare on the familiar U.S. federal-state cooperative model, but they never anticipated lasting unpopularity and opposition. To resolve this political problem, the IRS brushed off the statute and expanded the subsidies to both types of exchanges.
Arguing before a three-judge panel, Assistant Attorney General Stuart Delery pointed up "interpretive tension" among various complex provisions. But he also suggested that reading the text literally would undermine ObamaCare's purpose and structure of a nationwide system of subsidized health care. Try to parse that one: This is a law that its defenders argue will self-destruct if implemented as drafted by its architects.
As Chief Justice John Roberts famously wrote upholding the insurance purchase mandate, "It is not our job to protect the people from the consequences of their political choices." It is also not their job to protect politicians from the consequences of their policy choices.
Billionaire Sheldon Adelson has a history of illegal behavior and controversial comments -- facts that were left out of mainstream print reporting on GOP candidates trying to win his favor last week.
The Republican Jewish Coalition met March 27-29 in Las Vegas, and the event was dubbed the "Adelson Primary" as GOP presidential hopefuls used the meeting to fawn over magnate Sheldon Adelson. Adelson is the chairman and CEO of Las Vegas Sands Corp., a casino and resort operating firm, who reportedly spent nearly $150 million attempting to buy the 2012 election with donations to a super PAC aligned with Mitt Romney and other outside groups (including Karl Rove's American Crossroads). Before switching allegiance to Romney, Adelson had donated millions to Newt Gingrich. He has also given generously in the past to super PACs associated with a variety of Republican politicians, including Scott Walker, John McCain, Rudy Giuliani, George W. Bush, and Eric Cantor.
Hoping to benefit from Adelson's largesse, potential 2016 Republican candidates including Gov. Chris Christie (R-NJ), Gov. Scott Walker (R-WI), Gov. John Kasich (R-OH), and former Florida Governor Jeb Bush gathered at Adelson's casino to "kiss the ring."
While Republicans' efforts to court Adelson made big news in print media over the past week, none of the articles mentioning Adelson in The New York Times, Washington Post, Politico, or The Wall Street Journal mentioned that he has come under investigation for illegal business practices, including bribery, or his history of extreme remarks.
Right-wing media have been Hobby Lobby's biggest fans in the Supreme Court showdown between the federal government and the company over the health care law's contraception coverage mandate, championing Hobby Lobby as only interested in protecting its religious liberties. But according to new documents obtained by Salon, the company is an active partner to activist groups pushing their Christian agenda into American law.
This week the Supreme Court took on the Affordable Care Act's contraception coverage mandate, hearing arguments in Sebelius v. Hobby Lobby, a case which could allow secular, for-profit corporations an unprecedented religious exemption from the requirement that all health insurance cover preventive services like birth control. The conservative plaintiff, Hobby Lobby, is arguing that some emergency contraceptives covered by the mandate amount to abortion -- even though they don't.
Over at National Review, editor Rich Lowry framed the Green family -- Hobby Lobby's owners -- as "law-abiding people running an arts-and-craft-chain," "minding their own business," until "Uncle Sam showed up to make an offer that the Greens couldn't refuse -- literally." Jonah Goldberg, in an op-ed in USA Today, claimed that all Hobby Lobby is asking is to leave birth control decisions up to women and their doctors.
The conservative media sphere has repeatedly characterized Hobby Lobby as merely seeking "religious freedom." As Fox News host Eric Bolling described the case, "your religious freedom, guaranteed to you by the constitution, hangs in the balance." He added that the mandate "feels like political ideology trumping small business." The network has even given Hobby Lobby's attorney the platform to champion the company's small town virtues.
It turns out that the company right-wing media have worked so hard to champion has a significant hidden political agenda. On March 27 Salon broke the story that it had obtained a document revealing Hobby Lobby's political funding ties to a network of activist groups "deeply engaged in pushing a Christian agenda into American law."
According to Salon, a 2009 Tax Filing Form revealed that Crafts Etc., a Hobby Lobby affiliate company, and Jon Cargill, the CFO of Hobby Lobby, contributed a total of nearly $65 million in 2009 alone to the National Christian Charitable Foundation -- one of the biggest contributors to the Alliance Defending Freedom and the Center for Arizona Policy.
These organizations pushed SB 1062 -- the anti-gay legislation recently vetoed by AZ Governor Jan Brewer -- to the AZ Statehouse, and their agendas include many other discriminatory and dangerous policies including legislation that forces women to have invasive ultrasounds before abortions.
The National Christian Charitable Foundation also contributed over $90,000 in 2012 to the Becket Fund, the legal group representing Hobby Lobby in its current Supreme Court battle over Obamacare's contraception mandate. As Salon explained the relationship:
Seen in this light, the ideological connection between the Hobby Lobby suit and Arizona's recently vetoed legislation becomes clearer: One seeks to allow companies the right to deny contraceptive coverage while the other would permit businesses to deny services to LGBT people. "There are really close legal connections between [Arizona's anti-gay SB 1062 bill] and the [Hobby Lobby] Supreme Court case," Emily Martin, vice president and general counsel at the National Women's Law Center, told Salon. "Ideologically, the thing that unites the two efforts is an attempt to use religious exercise as a sword to impose religious belief on others, even if it harms others, which would be a radical expansion of free exercise law," said Martin.
And the common thread is the much bigger trend across the country. "Individuals and entities with religious objections to certain laws that protect others are seeking to use their religion to trump others," Brigitte Amiri, senior staff attorney at the American Civil Liberties Union's Reproductive Freedom Project, told Salon.
After the Supreme Court heard arguments in the legal challenge to contraceptive coverage under the Affordable Care Act (ACA), The Wall Street Journal's editorial board was quick to celebrate by pushing tired myths about the case and encouraging the judicial creation of new rights for corporations.
On March 25, the Supreme Court heard Sebelius v. Hobby Lobby, a case that could allow secular, for-profit corporate employers the ability to deny their employees preventive health insurance coverage based on their owners' religious objections. The owners of Hobby Lobby, the Green family, identify as conservative Christians who oppose some forms of birth control that they have decided -- in the face of scientific evidence to the contrary -- cause abortions.
Right-wing media have relished this opportunity to reject reproductive rights and come out in support of the Green family and Hobby Lobby. In their first editorial since oral arguments, the WSJ's editors were predictably pro-Hobby Lobby, calling the Obama administration's argument that a for-profit, secular corporation is incapable of religious belief "remarkable":
[T]he Administration's remarkable argument is that if a business is incorporated and for-profit, it forfeits normal constitutional rights. Hobby Lobby is a chain of craft stores that is a closely held, family-run corporation that tries to operate in accord with biblical principles.
Trying to distinguish between for-profit and nonprofit corporate forms for this regulatory purpose is constitutionally unprecedented. Corporations are often treated as "persons" for legal purposes, such as protecting free speech, and prosecutors can indict entire corporations for breaking laws. As Chief Justice John Roberts observed, minority-owned businesses can bring racial discrimination lawsuits. So why can't Christian- or Muslim-owned businesses exercise religion? Solicitor General Donald Verrilli had no good answer.
Liberal Justices rolled out a parade of dubious hypotheticals, arguing that if a business can invoke religion to refuse to pay for abortifacients, couldn't it also refuse to pay for blood transfusions or vaccinations? "Could an employer preclude the use of those items as well?" asked Justice Sonia Sotomayor in the day's first question.
Yet no one is "precluding" anything. Contraception is cheap, plentiful and covered by most health plans. Most corporations are run for profit, not piety. Mr. Verrilli claimed the mandate is necessary to promote public health and gender equality, but HHS could have aided those goals without forcing a minority of business owners with moral aims to implicate themselves in what they consider to be grave moral wrongs.
But the fact that "most health plans" cover contraception is precisely the point, just not in the way the WSJ thinks.