Bob Schwartz

Tag: Antonin Scalia

Aereo: Agreeing with Justice Scalia

Aereo

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.

The Torah and the Supreme Court: Tazria and Scalia

Women of the Supreme Court

This week the portion of the Torah read in Jewish communities is Tazria (Leviticus 12:1–13:59). This week the Supreme Court heard arguments in the widely reported Hobby Lobby case. There is a significant but not obvious connection between the two.

Leviticus is the one of the Five Books of Moses that has the least action and the most rules. Lots of rules about the behavior of the Jewish people. In the thousands of years since those rules flowed into the processes of cultural and social oral tradition, and in the thousands of years since those traditions were set down in writing, different Jewish people and communities have determined which to honor and which to ignore. Those decisions are based on what exactly one thinks these rules are: God-given and inviolable, or ancient and subject to temporizing to suit modern philosophy and life. We should not wear clothing made from two different fabrics, Leviticus says. Non-literal interpretations of this have been conceived for centuries, but it says what it says, or rather, God says what God says. But what’s so wrong about a wrinkle-free, 60/40 cotton-poly blend shirt?

The Tazria portion begins:

The Lord spoke to Moses, saying: Speak to the Israelite people thus: When a woman at childbirth bears a male, she shall be unclean seven days; she shall be unclean as at the time of her menstrual infirmity. On the eighth day the flesh of his foreskin shall be circumcised. She shall remain in a state of blood purification for thirty-three days: she shall not touch any consecrated thing, nor enter the sanctuary until her period of purification is completed. If she bears a female, she shall be unclean two weeks as during her menstruation, and she shall remain in a state of blood purification for sixty-six days.

On the completion of her period of purification, for either son or daughter, she shall bring to the priest, at the entrance of the Tent of Meeting, a lamb in its first year for a burnt offering, and a pigeon or a turtledove for a sin offering. He shall offer it before the Lord and make expiation on her behalf; she shall then be clean from her flow of blood. Such are the rituals concerning her who bears a child, male or female. If, however, her means do not suffice for a sheep, she shall take two turtledoves or two pigeons, one for a burnt offering and the other for a sin offering. The priest shall make expiation on her behalf, and she shall be clean.

 The attitude toward and treatment of this passage in a modern context ranges widely, depending on belief sets. Some express wholesale acceptance and obedience (except for the sheep and bird sacrifice). Some faithfully regard it as God’s word, but pass it through interpretive filters suitable for the times. Some see it as a reflection of ancient people making sense of the mysteries of God and life.

One of those mysteries, of course, is women. Especially for men. Especially for the strange and foreign ways that women “work”. No matter your ideology, no matter how much the passage is accepted or spun, it is not hard to read meaning. Women are different. Some of that difference renders them unclean, even if that part is functionally essential (e.g., sex, birth). That uncleanness can be fixed, but it will cost you (e.g., lambs, pigeons).

The Hobby Lobby cases (Kathleen Sibelius, Secretary of Health and Human Services v. Hobby Lobby; Conestoga Wood Specialties Corp. v. Sebelius) concern the interaction of two federal laws: The Religious Freedom Restoration Act of 1993 (RFRA), which aims to protect Americans from intrusion on their religious lives, and the Affordable Care Act (ACA) which, among other things, requires employers to offer health insurance that includes coverage for contraception. The Tenth Circuit Court of Appeals found that the religious right of companies such as Hobby Lobby, which has Christian objections to providing that coverage, overcomes the particular requirement of the ACA.

The big legal issues are complex and significant. One arises every time religion is in the mix: we protect religion in this country, both in its expression and establishment, but in a nominally secular country, that is bound to clash with civil rights that may contravene religious belief. This isn’t easy to resolve, but resolve it we do. If, for example, your religion happens to believe that people of color are lesser human beings, and you are “commanded” to treat them accordingly, you still cannot follow that faith in the public square or the marketplace.

The other big legal issue is whether a company such as Hobby Lobby is a “person” able to enjoy religious liberties in the first place. We’ve seen this come up before and will again. Citizens United is the most recent and famous case deciding that enterprises may enjoy free speech, First Amendment rights, just as you do. Then there is Mitt Romney, former presidential candidate, who will forever be identified with his own legal interpretation of the issue: “Corporations are people, my friend.”

Besides these, the Hobby Lobby case is widely viewed as being about women, because practically it is. The ACA requirement that health insurance include contraceptives for women is a practically and realistically sound policy. A large majority of women use contraceptives, either for health reasons or, more frequently, to prevent conceiving as a result of sex. Preventing conception has a number of advantages, including avoiding unwanted or unplanned pregnancies. An advantage of this is that women do have sex, and do want to avoid pregnancy. It’s that basic. And then there’s this: many of those women who want to prevent conception are having sex with men.

The transcript of oral arguments in the Hobby Lobby case shows, as usual, a deeply divided court. Beyond the interesting central arguments concerning religious freedom and the personhood of corporations, there is a subtle subtext (some might say not so subtle). To a certain extent, the law, and arguments about it, are clinical. To the greatest extent possible, questions about impact are subservient to questions about the law itself: what it says, what was intended, how it works with other laws and with the Constitution. The rule of law prevails over the rule of people, and if the impact is unfair or disproportionate but still constitutional and legal, well, change the law.

But that has never been, will never be, and can never be how it works. Everyone—judges, lawyers, litigants, citizens—comes to the table with histories, psyches, lives, all the riches and trash we can carry. That’s how a case that seems about one thing can be, at least in small part, about another. That’s how the Hobby Lobby case is about women, something the three women on the Supreme Court without question get, something the six men may or may not.

Do read the transcript of the argument and maybe a few of the almost one hundred appellate briefs filed in the cases. In the arguments, you won’t find any express misunderstanding of the lives and impact of the case on women, though you may if you read between the lines. The briefs, which come from just about every corner of American society and politics, are a little clearer on how this is about women in ways that are not just incidental.

This brings us back to Tazria. It is easy to dismiss the passage as archaic, particularly for those who have found ways to work through or around it. Similarly, you may consider the Hobby Lobby case one about important and respectable religious and legal doctrines, and it is.

It can’t be said often enough: Men don’t get it and they can’t. They don’t know what it’s like to menstruate or be capable of bearing children or of having children. They don’t know what’s it like to be treated as unclean because of all of that, and then to be hypocritically treated as enjoyable and useful for those very same reasons. They don’t know how it feels to have some very simple means of adjusting all that, and then to have those means treated as something both profound and trivial, but not important.

Men don’t know, even if they are at the pinnacle, writing scripture or dispensing justice. So pleading ignorance, a little humility, a little learning, and a little compassion might be in order.

Reductio Ad Scalia

Justice Antonin Scalia
Supreme Court Justice Antonin Scalia was asked yesterday why his writings compare homosexuality to bestiality and murder. Answering a Princeton freshman, Justice Scalia said:

“It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd’. If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

(“I thought you would have known” seems a bit of a put down. This may have something to do with Justice Scalia having attended Georgetown undergrad, as opposed to Justices Samuel Alito, Sonia Sotomayor and Elena Kagan, all of whom attended Princeton.)

This is a common theme in the logical argument against cultural and moral relativism, particularly when it comes to homosexuality. And it is a provocative argument, as far as it goes. If we are to make no moral judgments about sexuality, then each and every type and instance of behavior is a matter of choice—polygamy, bestiality, you name it. Once we admit morality, we are broadly entitled to hold to it and the distinctions we make, even in the face of popular disagreement.

This is something worth thinking about as we make private and public policy, but it is far from dispositive. Some think we are at our best and doing our best when we hold strictly—including the “strict” construction of the Constitution, or for that matter of the Ten Commandments. But the real world has a funny way of demanding flexibility and fluidity from our philosophers, lawmakers, law interpreters and enforcers.

So Justice Scalia is not entirely wrong. He and all of us are, to avoid the absurd, allowed to attach particular values to homosexuality, bestiality, polygamy, divorce, whatever. There are probably still some out there who believe that slavery is moral; we know at least that it still thrives in the world. As for killing, morals differ for different circumstances; if not we would have outlawed killing entirely, or would admit that we don’t make a clear enough distinction when we seem to be legislating hypocritically.

But the story doesn’t end when we prove logically that different morals are legitimate. In the real world, people suffer at the hands of our “moral feelings” as Justice Scalia calls them. In some ways, it’s always about the suffering. In the face of “moral feelings” among some that there was nothing wrong with slavery, much of America agreed to its greatest national conflict to relieve an equally great suffering. Those who have legitimate “moral feelings” about homosexuality and marriage might want to be weighing their profound discomfort against the suffering of millions, not to mention against the arc of history.