Bob Schwartz

Month: June, 2014

Hobby Lobby and Peyote


Peyote is at the heart of today’s Supreme Court decision in the Hobby Lobby case.

Hobby Lobby does not sell peyote. When Hobby Lobby attends church, its religious practices don’t include eating peyote. Its Christian beliefs do include opposition to certain forms of contraception, and therefore it opposed having to provide health insurance under ACA that includes such contraception.

Hobby Lobby’s objections reached the Supreme Court. In today’s 5-4 decision, the Court found that the entity that is Hobby Lobby has a claim to religious freedom from that requirement, grounded in the First Amendment and in the Religious Freedom Restoration Act of 1993 (RFRA). And that is where peyote comes in.

This begins with the case of Employment Division, Department of Human Resources of Oregon vs. Smith (1990). Two employees of the State of Oregon were members of the Native American Church, and ingested peyote as a sacrament. They failed a drug test and were fired. The Supreme Court found that despite their claim of religious freedom, Oregon had the right to terminate them.

In response to this and other decisions, activists from the left and right, religiously and politically, came together to push for a legislative remedy. How universal was support for a fix? The House vote for RFRA was unanimous, the Senate 97-3, and President Clinton signed it.

More than twenty years later, what hath God and Congress and the Court wrought? Characterizing this new allowance for religious exceptions to laws as narrow seems wishful, hopeful, or just plain wrongheaded. There will be more attempts than before to see just how big this hole is and what sort of company policy vehicle can be driven through it on the basis of religious freedom.

Quite possibly, the next big test will be to see exactly what closely held companies that have religious objections will be permitted to do about homosexual employees. We have no federal law on employment discrimination against gay people, and in a country where we can’t even pass equal-pay for equal-work for women legislation, that isn’t likely any time soon.

God apparently doesn’t endorse IUDs but approves of peyote. His judgment on Hobby Lobby and the Supreme Court is still out.

Fortune Magazine Pleads: Heed the Authentic Cry of Our Youth

Youth in Turmoil Cover

It is January 1969. Fortune, one of the world’s most conservative business magazines, publishes a special issue about Youth in Turmoil. It then adapts the issue into a book, with an image of a flame on the cover.

The message is not, as you might expect, about how these ungrateful long-haired drug-addled rebels are destroying the country. On the contrary, the message is that these young people are trying to tell us something important and we should listen—before it’s too late.

Here is the introduction:

American youth is trying to tell us something important. The brightest of our young men and women are telling us that as far as they are concerned the choices for our society are narrowing rapidly. We can, at worst, look ahead to a future, very near, in which they lose all heart for our national effort, thus robbing it of its nerve, vitality, and point—a state of affairs in which they range themselves against us either in violence or in withdrawal. Or we can heed the cry of these young adults. Though often marred by shrillness, arrogance, and negativism, that cry is authentic and valid in its central message. It tells us that in our rush to well-being we have left much undone at the same time we have made so much more do-able. It tells us that we should rechannel our enormous energies to deal with the lengthening list of environmental and social grievances. If we can enlist these young idealists and they can enlist us, the nation will evolve toward a life style that once again sets a new standard for the world. I hope that this book, adapted from the January, 1969, special issue of FORTUNE, will contribute to that mutual enlistment.


Please read this word-for-word. It is extraordinary. This is a bible of the establishment, during one of our most anti-establishment times, acknowledging that many things are wrong—including environmental and social problems—and admitting that young people are trying to remind us of our responsibilities to make it right. If the establishment fails, Fortune says, “We can, at worst, look ahead to a future, very near, in which they lose all heart for our national effort, thus robbing it of its nerve, vitality, and point—a state of affairs in which they range themselves against us either in violence or in withdrawal.”

Consider how far we have come. Youth seems to be somewhat disaffected, maybe even having lost heart and been robbed of its nerve—but not exactly in turmoil. Much of the conservative establishment would now never dream of agreeing that we have justifiable environmental and social grievances, let alone that these should be aggressively addressed.

The Sixties are variously celebrated, trivialized, and even laughed at. Maybe it’s funny to see a Big Business publication like Fortune willing to open its eyes, look around, and decide that these kids just might have a point and we can do a whole lot better. Or maybe it’s a little sad that we don’t see more of that today.

Hillary Says She Was Inartful

Hillary Clinton

Asked about her comments on the Clinton family wealth, Hillary Clinton now says, “Well, I shouldn’t have said the five or so words that I said, but my inartful use of those few words doesn’t change who I am, what I’ve stood for my entire life, what I stand for today.”

There were actually more than five words, on two recent occasions. First she said that she and Bill Clinton were not only dead broke when they left the White House, they were in debt. Then she said that they paid their taxes like regular people, not like others who were “truly well off.”

Aside from whether these words reflect their financial affairs, or whether they reflect her being out of touch or just a bit rusty as a candidate, this is the thing: regular people don’t use the word “inartful,” at least or especially not if they are running for President and trying to look like regular people.

Publicly, Bill Clinton would not say “inartful.” George W. Bush wouldn’t say it. Barack Obama wouldn’t say it. And besides those last three Presidents, John McCain wouldn’t say it. And neither would Mitt Romney, who when he faced having made a similar and very damaging comment about income, simply said that he “misspoke.”

There’s nothing wrong with being wealthy, smart, well-spoken, or intellectual. Plenty of Presidents and successful leaders have been some or all of these. But the challenging key is to be both comfortable with who you are and yet able to be appropriately yourself in whatever context you are in.

Lots of us may use “inartful” as part of our writing or conversation; it’s actually a very useful word. But lots of us—almost all of us—are not running for President, or considering it.

Finally, for those who are into word things, there is another point. “Artful” sounds pretty good, particularly if you mean getting your language just right to express your thoughts. But it is a close cousin of the word “artifice,” which has a very different meaning and feel. So if what Hillary was trying to say was that her previous comments were imperfect artifice—that she didn’t get the story about the Clinton wealth quite right—then maybe she is on to something. And maybe “inartful” was le mot juste.

Aereo: Agreeing with Justice Scalia


It doesn’t happen often that I agree with Justice Antonin Scalia. On the law or much else.

But his dissent in today’s Supreme Court decision in ABC v. Aereo is pretty good and pretty right. By 6-3, the Court decided to allow Aereo to be subject to violation of copyright law.

As explained in an earlier post at the time of oral arguments, Aereo has devised a complex tech scheme by which it captures over-the-air-broadcasts at the request of subscribers, using tiny antennas that subscribers essentially time-share, and then allows subscribers to watch those broadcasts online.

In the opinion, the majority agreed with the networks, finding that this is just a too-clever-by-half way of getting around copyright law and avoiding paying retransmission fees, as cable companies are required to do. Justice Scalia found the reasoning and judgment of the majority deficient in many ways, and his dissent is well worth reading.

Among the points, he notes that exploiting loopholes is not illegitimate, and is in fact one of the things that lawyers are good at and are supposed to do. Justice Scalia does not necessarily think that Aereo should go without liability or responsibility, but that trying to make the law fit to reach a desirable result is not the way to get there. If the law doesn’t fit the technology, Congress is charged with and capable of fixing it. (Note that this is the connection between his strict constructionism and his very progressive position in this particular case.)

There was a lot of apocalyptic talk at oral arguments (Aereo would destroy broadcasting as we know it), and there is apocalyptic talk today (the somewhat fuzzy majority opinion leaves all sorts of cloud-based services under legal suspicion). The earlier post repeated the maxim: hard cases make bad law. This is a hard case, and whether the law is bad or not, it sure is an irresolute path to the future. About that, Justice Scalia is right.

Mississippi’s Existential Election

Mississippi Tourism Guide

The Republican primary runoff today between long-time U.S. Senator Thad Cochran and insurgent Tea Party candidate Chris McDaniel is a story of pragmatism clashing with political philosophy.

My love and appreciation of Mississippi is unbounded. My frustration at how it is misunderstood, mischaracterized, and disrespected is constant. But my sense of realism means saying this: Mississippi would not have survived and thrived as it has without generations of powerful U.S. Senators making sure that federal defense projects and other spending were directed its way. Mississippi is one of those states that receives much more in federal spending than it gives in taxes.

And that’s just fine. I have affection for the many states I’ve lived in, and recognize the distinctive value of each. Like a parent, I may not want to say that any of them is more or less deserving. Yet given a hard choice, I would choose to help Mississippi more than the others.

No doubt the anti-government, anti-earmarking tide is rising, and the Tea Party and Chris McDaniel are rising with it. But Thad Cochran, whose problems include his age and his supposed “liberalism”, has had to be pretty plain in pointing out that if re-elected, his seniority means that he will still be in a position to bring home the bacon for Mississippi. Maybe not as much as in years past, but still more than someone who is philosophically opposed to such spending, and who in any case would end up being one of the most junior Senators in the country.

And therein is the irony. If McDaniel wins the nomination, and if he wins the Senate seat, he can’t possibly serve the interests of his state by forcing it to go “cold turkey” without federal funds, as the Tea Party wants. Mississippi is wonderful and irreplaceable, and if there was any justice in the game of economic geography, it would be high on all the important rankings, rather than languishing at lower levels. It has been, and for the moment remains, a state in need.

There is no shame in that. If shame there is, it is in politicians who want to claim that Mississippi should just sink or swim because that’s what some abstract philosophy dictates. It may also be a shame that when push comes to shove, those same politicians may end up being hypocrites and opportunists. If and when they take office, they will face the existential question. Survival trumps philosophy, and in the case of Mississippi, it should.

Suit and Tie: The Sad and Silly Syrian Election

Syrian President Assad Votes

It is reported that President Bashar al-Assad wore a dark suit and light blue tie for voting in today’s Syrian election. Good reporting. He looked good. So did his wife Asma.

Assad actually had opponents, the first time Syria has had a contested presidential election in fifty years. No one could think that this opposition meant anything. The other candidates could not think so. And yet there were supporters and voters at the polls, maybe out of fear, maybe out of hope, maybe just wanting to pretend things are normal. Some new normal, so that with one more term, a few more years added to his enlightened regime, there would be no more deaths after the 160,000, no more displaced and refugees after the millions.

Journalists and other nations are sworn by a sense of fairness and professionalism and diplomacy and sovereignty to pretend that this is an election, even if they have some quibbles. They might, if they had a better sense of irony or humor, treat it like Halloween or Mardi Gras. An occasion on which one dresses up to play the part of something you are not, say, a democratically elected leader in dark suit and light blue tie.

The U.S. also had an election during a civil war. Lincoln did have opposition and he did win. Whatever he wore when he voted, he certainly didn’t look as slick as Assad, nor was Mary Todd as socialite beautiful as Asma. By that point Lincoln was deeply tired and sick of the horrible conflict and would do anything he could to finally end it. The good news is that there would be only a few more months of war. The not so good news is that even with the good that came, it would take decades for the wounds to begin healing. The worst news, for Lincoln and the country, is that he would soon be assassinated.

Lincoln and the civil war were sad but never silly. Assad, in his dark suit and light blue tie, within this hollow semblance of an election, is sad and morbidly silly. Unlike Lincoln, he may be around for years, continuing to rack up votes and deaths. But looking real good.