Monday, May 28, 2012


Comparing the NYT Editorial Board to Rep. Pelosi and Other Democrats

The NYT today has an editorial saying the lawsuit of a number of Catholic charitable entities is a big nothing. Remember when someone asked then Speaker Pelosi if the individual mandate in Obama Care was unconstitutional. She, incredulous, replied "Are you serious?" Serious as a heart attack, granny. I am unwilling to predict what will happen to the individual mandate when the Supreme Court writes its opinion on the subject in a few weeks because I believe in jinxes, but it was clear during the oral arguments that several justices were taking the argument of the mandate being unconstitutional very seriously indeed.

The idea that a redefinition of just who is a religious organization (which the regulations do seriously redefine in Obama Care regulations) is a big nothing is just plain, 9-0 wrong. See Hosanna-Tabor v. EEOC here. All the justices take the first amendment very seriously and zealously guard the freedom of religious organizations (like church schools) from governmental overreach. The contraception mandate is in very serious legal and constitutional trouble.

It would be difficult to tell you how blind to the obvious the NYT is in its opinion piece today. Here is but a tiny example. After arguing no organization is exempt from "neutral laws of general applicability", the editorial states:

And there was no violation of religious exercise to begin with. After religious groups protested, the administration put the burden on insurance companies to provide free contraceptive coverage to women who work for religiously affiliated employers like hospitals or universities — with no employer involvement.
Well, for every Catholic entity which is a self-insurer, and there are plenty of those, the insurer mandate dodge clearly doesn't work. However, the Catholic entities who have health insurers, as has been pointed out, have to pay the insurer to provide the objectionable items and services. There is no functional difference between who ultimately pays for the items and who actually hands them or partial reimbursement out. This argument that the problem is fixed by the accommodation is stupid, self imposed blindness.

You probably ask how can the NYT get it so wrong? Jonah Goldberg has a whole book about how the left blinds itself to other views. The editorial in question is merely another example.

I predict a rude awakening coming. Very rude indeed.

UPDATE: PowerLine is onto the NYT's miserable excuse for legal analysis and comes to the same conclusion with the added feature of an expert in the field (Michael McConnell) opining along the same lines and further.

Money quote from an account of a discussionon the subject by the good professor:

He explained that the Religious Freedom Restoration Act of 1993 makes it clear that the federal government may not “substantially burden” the exercise of religion unless it is furthering a “compelling government interest” and employing the “least restrictive means” of doing so.

In this case, he said, it is “rather obvious” that the mandate imposes a substantial burden on the free exercise of religion by requiring religious individuals and organizations to participate in something that they consider gravely immoral.

Furthermore, in granting an exemption at all, however narrow, the administration was acknowledging that “this would be a burden” on the free exercise of religious groups that find it objectionable, he said.

He added that the mandate would impose a substantial burden even with the administration’s promised accommodation, which he said is “no difference in substance whatsoever” than the original regulation.
Turning to the standard for a “compelling government interest,” McConnell explained that the federal government issued the mandate because it believes that contraception coverage is important and wants to place the cost of covering it on employers.
This is “not a compelling interest at all,” he said.

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