March 27, 2014

Jeffrey Toobin's embarrassingly bad write-up of the Hobby Lobby oral argument in The New Yorker.

Going over to The New Yorker website to find the important 1982 article "The Fate of the Earth" — its author, Jonathan Schell just died — I accidentally noticed, in the "Most Popular" list in the sidebar, that Jeffrey Toobin article, idiotically titled "Women Justices Rock the Hobby Lobby Argument," about which I thought I'd overcome my feeling that I needed to blog. But the contrast between "The Fate of the Earth" and what Toobin gets away with dropping onto The New Yorker website has got me fired up again.

The stupidest sentence in the article is this:
Solicitor General Donald Verrilli, who was defending the law, invested heavily in the argument that for-profit companies like Hobby Lobby simply do not have rights to religious expression under the First Amendment.
No, he didn't! Quite aside from the fact that he got nowhere with the argument that for-profit corporations should be treated differently from other corporations, the rights in question were not under the First Amendment. They came from a federal statute called the Religious Freedom Restoration Act, which Toobin never mentions in his article!

If you know one thing about the First Amendment's Free Exercise Clause, you know that it doesn't stop the government from imposing neutral, generally applicable laws even if they burden religious believers. If you know 2 things, you know that Congress reacted to the Supreme Court's interpretation of the Free Exercise Clause by passing the Religious Freedom Restoration Act to require religious exemptions. Everyone in the House voted for it, all but 3 Senators voted for it, and Bill Clinton signed it. It's a text that Congress could amend, and Congress could have written an exemption from it into the Affordable Care Act. Everyone including Verrilli admits it covers corporations, and Verrilli had to try to argue that the Court should divine what Congress really wanted and read an exclusion of for-profit corporations into it.

How can you write about the Hobby Lobby case without mentioning the Religious Freedom Restoration Act? It's blatantly, atrociously deceptive. Toobin proclaims that "The issue in the case is straightforward." Yeah, I guess it is when you don't bother to mention the statute the claim is based on. Toobin mentions the other statute, the Affordable Care Act itself, and he asserts that it "requires employers who provide health insurance to their employees to include coverage for contraception." Well, actually, no, it doesn't! Congress did not take the political heat of dealing with contraception (which includes some methods some people think are abortifacients). Congress avoided that static as it pushed through a law by the narrowest possible margin. It left it to HHS to make the regulations that are under consideration.

If you really want to be straightforward and you actually care about what the legislature has done, the Religious Freedom Restoration Act towers over the HHS regs. Congress took the political credit for RFRA. Our elected representatives preened over their enthusiasm for religious exemptions back then. Congress avoided political responsibility — as it barely passed the ACA — for the birth control provisions and Congress avoiding for cutting the ACA free from the RFRA regime of judicially recognized exemptions.

The second stupidest thing about Toobin's article is this cheerleading about female justices. They're "very important" he said. And the headline writer tells us they "rock." What these 3 women did was ask a lot of questions during the argument on behalf of Hobby Lobby, the party they will almost surely vote against, and this was just typical oral argument behavior. Justices ask a lot of questions of the lawyer to whom they are most antagonistic. It's not a special woman thing. If the 3 women are on the same side, it's because the 3 women are on the liberal side of the Court. Spare me your patronizing "girl power" enthusiasm. It doesn't enhance the prestige of the female Justices. Toobin is only expressing a stock allegiance t0 the liberal side of the argument.

Was Toobin around back when RFRA sailed through Congress? If he was, I'll bet he, like all the other liberal politicos of the time, was trashing Justice Scalia for writing the opinion that reined in the Free Exercise Clause doctrine. I googled "Toobin" to see when he became active, clicked on the top item (at Wikipedia)... and dissolved into hilarity to find myself at an article titled "Toobin.'" Toobin' — I learn — was a 1980s Atari Game based on the sport of tubing. Slogan: "It's totally tubular."

Saying "Women Justices Rock" is just about as dumb as calling them "totally tubular," and I am beyond annoyed that I had to write this, which I only did because the death of Jonathan Schell took me back to the once-meticulous and still often quite great New Yorker.

UPDATE: The New Yorker seems to have reacted to this post in what I call a "lame effort at un-embarrassing Jeffrey Toobin."

119 comments:

BigFire said...

This is the same Toobin that criticize Clarence Thomas for not being entertaining during oral argument?

traditionalguy said...

Toobin is a muckraker that deals in made up accusations as if they are real stories. That is why the NYT publishes him.

JOB said...

I'd say the late William Shawn would be turning in his grave - but more likely he'd be wanting to turn Toobin over a spit. Slowly.

Very slowly.

As Shawn's son is wont to say, "Inconceivable!"

JOB

rhhardin said...

The women justices are liberal because they're women.

That puts the girl power back in play.

rhhardin said...

Thurber did a New Yorker article on the New Yorker, in which every fact was wrong.

Greg said...

Liberal says Judges rock because they're going to vote according to their hormones rather than the law. War on women.

chrisnavin.com said...

I come for the cartoons, but I stay for the navel-gazing postmodern meta discussions about cartoons.

cubanbob said...

Toobin is just a hack who writes what his readers want to hear. another Democrat house propagandist with a byline.

Drago said...

rhhradin: "Thurber did a New Yorker article on the New Yorker, in which every fact was wrong."

Irrelevant.

Like the Toobin article referenced the only question that really matters to the lefties is: Was the "narrative" "correct"?

Toobin, like Jon Stewart last night, simply lie about what is.

Straight-faced lying is an absolute requirement for the left.

Ann Althouse said...

Back when Ruth Bader Ginsburg was on the DC Circuit, the people I knew were grousing about what a disappointment she was because she turned out to be a big conservative.

mccullough said...

I have to take a minor exception to your otherwise fine takedown of Toobin's firing up the the readership of the New Yorker.

The Smith case only allows the government to regulate, through neutral generally applicable laws, the conduct aspects of religious exercise not its speech aspects. So it doesn't get to regulate religious beliefs or writings, only the conduct of religious believers. Of course, what is conduct and what is speech is not always clear. Consuming peyote is conduct but a wedding ceremony that involves words and vestments not made from some banned product is speech. The government can't regulate religious expression that is belief/speech. The free exercise and free speech clauses prohibit that. So Toobin saying the Smith case allows the government to regulate religious expression is very misleading.

Ann Althouse said...

It's not that I don't know Toobin is a hack. This example of hackery really outraged me.

jr565 said...

You can rely on the liberal misconstruing or misrepresenting the facts of a case or an argument to instead argue the emotions of the argument instead.

Curious George said...

"It's blatantly, atrociously deceptive."

And I'll read all this bullshit a day later on my liberal friend FB news feeds. Hell, these stupid fucks still say that Bush and Cheney outed Valeria Plame.

He writes what the NYT and it's reader want to hear.

Ann Althouse said...

"The Smith case only allows the government to regulate, through neutral generally applicable laws, the conduct aspects of religious exercise not its speech aspects."

That's true, but I chose not to add that detail. I considered it.

Sorun said...

"The second stupidest thing about Toobin's article is this cheerleading about female justices."

It's not stupid if he's paid to make his female readers feel good about themselves.

mccullough said...

Judging from Toobin's behavior he believes birth control is the sole responsibility of women. So the government needs to make employers provide it, and presumably force women to take it, because Toobin won't wear a rubber when he cheats on his wife. He's also not persuasive enough to talk his ex-mistress into an abortion, so it's not surprising that his writing is so bad.

jr565 said...

Lawyer's Rule: When the law is against you, argue the facts.
When the facts are against you, argue the law. When both are against you, call the other lawyer names....

isn't that liberals argument style in a nutshell? They usually skip the first to and go straight the the insults. Their facts are very often not facts, but their opinions of facts.

Patrick Moynihan once said. "You are entitle to your own opinions but not your own facts" yet, for liberals the facts they argue are more often than not their opinions. And so, they are entitled to both. But only them.

Tie that into the lawyers Rule. And you can see why they are so insulting all the time. They are trying to legislate their opinions as if they were facts.

YoungHegelian said...

But, Perfessor, these big publications have editors & layers & layers of fact-checkers, unlike all you clowns doing blogs in your house-slippers. Right?

A couple of weeks ago I lay in bed gritting my teeth as I heard NPR's "Morning Edition" discuss protests in Florida over the "Stand Your Ground" Laws. ME referenced outrage over the Dunn & Zimmerman trials, even though both trials did not use a SYG-based defense at all, but rather relied on standard self-defense.

There are no truths. There are just competing narratives.

Matthew Sablan said...

Well, there's no need to mention the stuff his audience doesn't want to hear. It's not like he's writing for a newspaper or... wait, what?

Oh. Well then.

Marshal said...

I'm not sure why you'd call the sentence or analysis stupid. It seems like standard practice.

Toobin describes the policy as he thinks it should be while ignoring the contradicting facts. When enough of the left leaning elite are sufficiently supportive of the resulting narrative the media will describe the legal impediments as anachronistic or loopholes, claim the law should evolve, and pressure judges to reinterpret accordingly.

Isn't this how we ended up allowing, and movign toward requiring, racial discrimination based on law that restricts racial discrimination?

Calling this article stupid seems to be missing the point at best and defending the practice (via distraction) at worst.

jr565 said...

Young Hegelian wrote:
A couple of weeks ago I lay in bed gritting my teeth as I heard NPR's "Morning Edition" discuss protests in Florida over the "Stand Your Ground" Laws. ME referenced outrage over the Dunn & Zimmerman trials, even though both trials did not use a SYG-based defense at all, but rather relied on standard self-defense.

There are no truths. There are just competing narratives.

its funny you mention the Zimmerman trial. Perfect example of the liberals arguing the narrative and not the truth. They'd mention a fact about the case. Only that fact wouldn't be true. Like for example, the idea that he was ordered not to follow TM, but did so anyway. Only, that was simply not how it happened. And we have the actual phone records to prove it. And yet, every time the issue came up, they'd argue the "fact" and not the truth. If everything was as the liberals said in that case I'd have no problem holding Zimmerman accountable. But it wasn't. Even the very realon that they cared about the case at all was based on a falsehood. It was all about refuting stand your ground laws. And they thought it was a perfect example to refute the law. Only, it really had nothing to do with the case, since Zimmermans team never used that as a defense. Didn't stop them from citing Stand your ground over and over. Even after the verdict.

There they go again.

jr565 said...

"There are no truths. There are just competing narratives."
Actually there is a truth. If the defense doesn't use stand your ground, then the case is not about stand your ground. And therefore arguing the narrative is not arguing the truth.the truth is that reality isn't conforming to their narrative.

madAsHell said...

This example of hackery really outraged me.

There must be a better way to take down this hack, and increase revenues. I just can't think of a way.

It's really annoying that "Ban Bossy" is allowed time on a national newscast, but correcting a failed interpretation of the Supreme Court transcript in the NYT is glossed over.

who-knew said...

Ann Althouse says "If you really want to be straightforward and you actually care about what the legislature has done". But it's Toobin, why would he want that? It's all about the cheerleading.

dbp said...

The most interesting question here is, why is Toobin a hack?

1. Is it because he doesn't know the case involves the RFRA?

OR

2. Because he knows that RFRA is at the heart of the case but chose to omit it from his piece.

khesanh0802 said...

Thank you, Ann. I really enjoy when you write passionately about your field of expertise. I learn a lot.

rhhardin said...

You take down the hack by ridiculing the audience for the hackery.

paminwi said...

Good golly, Miss Molly!

I love to see the Professor actually worked up about something. Cool, calm and deteched is the usual course of being. Nice to see that there is truly something that can rouse the sleeping giant.

I personally have never like Toobin because he acted a little to suave and doboner for me. But it is good to see that there is actually some lawyers who actually dislike him, too!

(And yes, I know that the word should be debonair)

damikesc said...

It's not that I don't know Toobin is a hack. This example of hackery really outraged me.

It might not be so much hackery as a lack of functional knowledge.

It isn't BETTER, mind you, but he might just be ignorant on the subject.

Todd said...

The other Zimmerman notable was that the media had to create a new racial designation in order to keep telling THEIR story. Until that case there was never a mention of "white Hispanic". The news jumped to the conclusion that he was white, based on his last name and off they ran. When it became clear that he was Hispanic, well no turning back now and "white Hispanic" is born.

MadisonMan said...

I chose not to add that detail. I considered it.

Toobin could say the same thing about RFRA.

Brando said...

I wonder how Toobin would react to the following:

"Court's lone black justice rocks latest opinion!"

"Court's Italian-American justices embody pure excellence in latest oral arguments!"

YoungHegelian said...

@damikesc,

It might not be so much hackery as a lack of functional knowledge.

Nope. See excerpt below from his Wikipedia bio:

He graduated magna cum laude with a Bachelor of Arts degree in 1982 and earned a Truman Scholarship. He graduated from Harvard Law School magna cum laude with a law degree in 1986, where he was an editor of the Harvard Law Review.

He's just a lying sack of shit, and, sadly, is a common example of what sort of nasty bastards have been coming out of the Ivy Leagues for the past generation or so.

Saint Croix said...
This comment has been removed by the author.
richlb said...

Just to be clear, Toobin' (the game) is awesome.

Saint Croix said...
This comment has been removed by the author.
Foobarista said...

I didn't have to Google to find Toobin'. I frequently used to get to the River Styx levels in my floaty innertube - good times. I took my Toobin' far more seriously than I take Toobin's arguments.

damikesc said...

He's just a lying sack of shit, and, sadly, is a common example of what sort of nasty bastards have been coming out of the Ivy Leagues for the past generation or so.

He has always come across to me as being similar to Kagan: Highly credentialed, but nothing that screams "intellect"!

He likely is lying and a hack, but trying to give him benefit of the doubt.

Real American said...

Toobin is a hack because he doesn't he doesn't care whether the RFRA is important to this case - he doesn't include inconvenient facts that don't fit his retarded vagina power narrative.

RecChief said...

"It's blatantly, atrociously deceptive."

OK lets look at the players and history. Toobin and the New Yorker.

I;m surprised at your apparent surprise.

Brennan said...

The 400,000 CNN viewers have to suffer through Toobin's legal analysis on everything. You get what you pay for.

jr565 said...

I always thought Toobin was a euphemism for sex, gay or otherwise.like giving someone the hot beef injection.

B said...

Barbara Boxer voted for the RFRA. That didn't stop her from sounding like an idiot recently.

legalinsurrection.com/2014/03/sen-boxer-ratchets-up-war-on-women-talk-in-critique-of-hobby-lobby/

FleetUSA said...

Maybe we just need to realize that MSM liberal commentators and writers are just airheads.

jr565 said...

The libs were similarly overstating the case on those laws that would allow someone to refuse to make a cake for a gay couple.
I heard some argue that it would mean that a bank could deny a gay couple a loan. When in fact that would extremely unlikely.rich Lowery of the National Reviee wrote an article pointing out how this was based in things already passed by democrats and had none of the implications that the critics said it would lead to.

paul a'barge said...

Toobin is an adulterer.

Look it up.

Michael K said...

These stories, appearing every day it seems, are just more evidence that The Democratic Party is a corrupt criminal organization that should be prosecuted under the RICO statute.

In other words, stop thinking of the Democratic Party as merely a political party, because it’s much more than that. We’re not just the party of slavery, segregation, secularism, and sedition. Not just the party of Aaron Burr, Boss Tweed, Richard J. Croker, Bull Connor, Chris Dodd, Richard Daley, Bill Ayers, the Reverend Jeremiah Wright, and Emperor Barack Hussein Obama II. Not just the party of Kendall “Agent 202” Myers, the State Department official recruited as a Cuban spy along with his wife during the Carter administration. Rather, think of the Democratic Party as what it really is: a criminal organization masquerading as a political party.

Related: Gun runner and state Senator Yee was arrested for conspiring to arm Muslim rebels in the Philippines.

Yee was a big gun control campaigner for US citizens. Not so much for terrorists.

Bob Ellison said...

RFRA is an insult to Astro Jetson.

chickenlittle said...

Solicitor General Donald Verrilli, who was defending the law, invested heavily in the argument that for-profit companies like Hobby Lobby simply do not have rights to religious expression under the First Amendment.

Aside from Althouse's excellent points and analyses, do "for-profit" corporations like The New York Times have free speech rights under the First Amendment? Or is it just wrong to presume that The New York Times is "for profit"?

chickenlittle said...

I think I just conflated The New Yorker with The New York Times. They all look the same to me.

Patrick O said...

Lizz Winstead, the co-creator of the Daily Show, posted a similar kind of op-ed over at Boing Boing.

There's a seemingly coordinated framing of the case going on.

chickenlittle said...

There's a seemingly coordinated framing of the case going on.

Lefties are going to have to gear up against the RFRA like they did against the DOM legislation. For them, the RFRA is another Clintonian mistake which must somehow be gutted.

The Left's refusal to mention (let alone discuss) the RFRA seems congruent with downplaying anything negative about Team Clinton.

Mike said...

The obfuscation on the part of the Liberal-Democrat-Media complex is stupefying!

cubanbob said...

chickenlittle said...
Solicitor General Donald Verrilli, who was defending the law, invested heavily in the argument that for-profit companies like Hobby Lobby simply do not have rights to religious expression under the First Amendment."

One never knows with the court but somehow between the RFRA and Citizens United this court isn't likely to find that companies that can hold free speech rights but can't hold religious views. it's possible it doesn't appear to me likely.

SeanJ said...

Do I detect some Toobin envy here?

Biff said...

Related: my Lefty friends on Facebook seem to be in ecstasy over this case, rapturously sharing articles with headlines like, "Kagan Throws Scalia's Own Religious Liberty Arguments Back In His Face!"

SeanJ said...

Be careful of what you wish for, you may just get it, so it's said. Anyone have any idea of the ramifications of favorable HL decision? Althouse's son could be denied a job because of his sexual orientation with companies that could then claim a religious exemption to hiring him.

Matthew Sablan said...

"Althouse's son could be denied a job because of his sexual orientation with companies that could then claim a religious exemption to hiring him."

-- No they could not. Are you even aware what the case is about?

eric said...

"Be careful of what you wish for, you may just get it, so it's said. Anyone have any idea of the ramifications of favorable HL decision? Althouse's son could be denied a job because of his sexual orientation with companies that could then claim a religious exemption to hiring him. "

I wish you were correct about this, but you're not.

I support freedom of association, unfortunately, it seems most don't.

Big Mike said...

@mccullough, you commented on a post by a law professor, about a case in her area of expertise, when she is known to not suffer fools gladly?

I don't care what gender you are, you, sir or madam, have some serious balls! Well done. Very well done.

traditionalguy said...

Framing the argument with winnng War on Women issue is all the Dems want to do. And they can fool most of the women who demand help from the government to end their imminent danger of pregnancy...damn those men.

Marshal said...

SeanJ said...
Althouse's son could be denied a job because of his sexual orientation with companies that could then claim a religious exemption to hiring him.


My favorite example of this practice came during the state MCRI initiatives Ward Connerly spearheaded a number of years ago. During the fear campaign leftists claimed the MCRI would elminate public funds for mammograms even though earlier MCRIs had passed with literally zero effect on mammogram funding.

Freeman Hunt said...

Rock on, ladies!

Heh. How many women read that and started gritting their teeth? Or felt the beginnings of annoyance and anger in some other way?

What's the deal with talking like that in women's sports, by the way? "Let's go, ladies!" And the like.

Freeman Hunt said...

Toobin's too busy overseeing his plantation to keep up with legal issues. We covered this on the last Toobin post.

gregq said...

B said...

Barbara Boxer voted for the RFRA. That didn't stop her from sounding like an idiot recently.

Oh, please, NOTHING stops Barbara Boxer from sounding like an idiot. It's what she is.

Matthew Sablan said...

"What's the deal with talking like that in women's sports, by the way? "Let's go, ladies!" And the like."

-- I always thought it was odd. I suppose it was just substituting ladies for gentlemen, but I don't remember my captains or coaches using it, except ironically.

Matthew Sablan said...

It being "gentlemen."

Rocketeer said...

I hear "let's go, ladies" a lot in men's sports, too.

Ann Althouse said...

"Toobin could say the same thing about RFRA."

I left out a side issue that wasn't relevant. He left out the central statute the case was about and misstated that it was about the first amendment, so these are not comparable at all.

This isn't a speech or worship or belief case. It's about conduct.

Freeman Hunt said...

"based on the sport of tubing"

When I first heard of tubing, I took it to be a backwater version of waterskiing, but that was incorrect. People do it everywhere. It is not fun, unless being pulled roughly across the water on an inflated tube is fun, which it isn't. How is it a sport? There you are lying indecorously across a fat rubber tube, holding a waterskiing rope. The boat starts, and off you go, being dragged around. You don't have the control of a board or skis. It's a tube. Like floating in a pool but loud and turbulent instead of relaxing.

Matthew Sablan said...

I thought tubing, the sport, was tubing down a mountain as opposed to skiing?

Freeman Hunt said...

Wouldn't that be sledding?

Ignorance is Bliss said...

It is not fun, unless being pulled roughly across the water on an inflated tube is fun, which it isn't.

We sometimes tried dragging which is like tubing, without the tube. It usually didn't last long.

Freeman Hunt said...

Dragging--ha ha!

Of course, floating in a pool isn't actually relaxing. How do people fall asleep doing that? The idea of tumbling into the water while asleep is so unpleasant. And then there's the sun, the heat. The point of the pool is that it's full of water, which is good for playing and cooling off. If you float on the top, it offers neither benefit.

YoungHegelian said...

@freeman,

When I've done tubing, it's been on whitewater rivers that also supported level 3 whitewater rafting (Tubing on a level 4+ river is a good way to get drowned).

Tubing done like that is physically exhausting. It's a huge workout for your arms, which have to paddle furiously to get your tube into place so that you go down the water chute in the right place instead of ending up capsized by a hydraulic.

Loads of fun.

Mattman26 said...

The sad thing --- well, the whole thing is sad, so maybe the saddest part --- is that many liberals who are reasonably bright and people of good will will read Toobin's account, and assume that he's a knowledgeable guy appearing in a prestigious magazine, and think that's all they need to know about this.

This, in turn, will reinforce the (mis-)perception that any justice who votes in favor of Hobby Lobby's position is either insane, stupid, or so politically motivated that he doesn't belong on a court. In other words, that conservatives are inherently stupid and/or malevolent.

That may be a great way to keep your base in line, but it's a malign contribution to a democratic society.

Wilbur said...

"Like floating in a pool but loud and turbulent instead of relaxing."

You should try it being pulled by a trireme. Serene and relaxing, the quiet only disturbed by dipping oars, the rhythymical drumbeat and the occasional crack of the lash.

Lindyhop said...

Mattman,
What was the reaction when Justice Roberts came down on the side of the ACA mandate as a tax? I recall quite a bit of vituperation. I think it's fair to say that if a Justice doesn't decide in favor of one's idea of justice, he / she will be maligned. It's human nature.

Chef Mojo said...

Tubing around here involves laying in a tube on the James River, with a rope connecting you to another tube holding a cooler filled with beer and a ziplock of rolled spliffs. When it's a group, everyone is tied to the beer tube. Catch a buzz and float gently down the river until I get to the landing a few blocks from my place. Fire up the barbecue.

THAT, my friends, is tubing.

Mattman26 said...

Well, Lindyhop, the flak that Roberts took was probably well-deserved, given the signs that he was influenced by the "street" and changed his ruling at the last minute.

I don't worry about the justices taking heat, though; they're big boys and (rockin'!) girls. What troubles me is that I think there are decent-minded liberals out there who, given the appropriate (i.e., truthful) background, could at least see --- even if they might still wish for Hobby Lobby to lose --- the nature of the legal problem here. But being Toobin-grounded just furthers the disconnect between left and right, and that feels unhealthy.

rhhardin said...

Richard Epstein analysis of Hobby Lobby audio.

SMGalbraith said...

The owners of Hobby Lobby provide to its female employees 16 of the 20 contraception procedures/devices mandated by the HHS. For free. Sixteen of 20.

And because of that women everywhere in America are being "denied" contraception.

This is the level of discourse we have now.



RecChief said...

"There's a seemingly coordinated framing of the case going on."

When asked if journ-o-list was still ongoing, Ezra Klein said, and I am paraphrasing," I;m not in control of something like that."

An interesting construction

RecChief said...

"And because of that women everywhere in America are being "denied" contraception. "

No, the claim is that they are being denied healthcare. There is a not so subtle difference.

Tamaay said...

I don't think it's a stretch to consider pregnancy a part of a woman's healthcare.

Tamaay said...

Pregnancy care and pregnancy prevention to be clearer.

rhhardin said...

Epstein lowers the hammer on the three women justices and feminists generally.

MadisonMan said...

Tubing is done down a river. With or without beer.

My most vivid memory is tubing down a rain-swollen creek (Hey, I was a teen), and there was a deer carcass draped over branch right over the river. I hit the deer, and capsized under it. I can still feel the dead deer's hooves scraping along my back.

Lindyhop said...

I wonder if prenatal care would be subject to a religious exception by an employer if the mother was unmarried. There is a Biblical admonition against premarital sex.

Sam L. said...

I'm guessing those three were totally gnarly, mannnnnnnnnnnnnnnnn.

SMGalbraith said...

"No, the claim is that they are being denied healthcare. There is a not so subtle difference."

Both claims are being made interchangeably.

They believe - or argue - that contraception is part of healthcare. And if it's not free then it's being denied.

Jon Stewart last night, for example, used the "denying contraception" claim.

Others (Sandra Fluke) say healthcare.

Since the issue concerns what type of contraception must be provided, I used the contraception language.

mr said...

I wonder if prenatal care would be subject to a religious exception by an employer if the mother was unmarried. There is a Biblical admonition against premarital sex.

But not admonition against caring for a pregnant woman, surely?

FreddyMac said...

mr

Why not? Many religions believe premarital sex is a sin. I do. Why should I have to cover such a pregnancy?

FreddyMac said...

Remember, it's the employers belief that counts. Not the employee's or the general public's.

Qwerty Smith said...

rhhardin said... "The women justices are liberal because they're women. That puts the girl power back in play."

Or maybe they count as women because they are liberal. If Clarence Thomas were a woman, Toobin might say she does not count because she votes against her gender.

Patrick O said...

"I wonder if prenatal care would be subject to a religious exception by an employer if the mother was unmarried."

This case isn't about wondering about hypothetical possibilities. It's about a specific issue.

If an employer denies prenatal care in such a situation, take them to court and see what is determined.

Or have Congress make or change the law to make it clear.

It's worth noting that pregnancy while an unmarried student at certain colleges can get someone kicked out. There are code of conduct requirements. I would suspect that the same would be true for faculty. I know cases where a faculty member had an affair and was dismissed, thus losing their health care.

Patrick O said...

The reframing of this case really does sound to me a lot like the apologetics I come across in Christian circles, where it frames people who support evolution or other such issue as either an idiot or malicious or both by selectively discussion facts and issues.

It's a rhetorical tool, often presented by tools.

Patrick O said...

The reframing by Toobin et al, that is.

Tamaay said...

The Rule of Unintended Consequences

Patrick O said...

Speaking of reframing the actual issues at hand, the NY Times is onboard!

Emil Blatz said...

For my money, Toobin will never top his introductory line in the Talk of the Town column, published immediately after the 1998 mid-term elections: "Mistah impeachment...he be daid!" Not quite, fool!

Mike Burke said...

You rock Ann.......And not simply because you're a woman. You're smart as all get out and you provide insight that even a lay person can understand and enjoy. Nicely Done. Thank U

Sheraton said...

OMG is that a "fisking" of Jeffrey Toobin's article? Maybe I'm using that term wrong, but I love your exasperation with the blatant stereotyping of the women justices. You go Ann!

caseym54 said...

One wonders, after a display like this, why the Court doesn't allow cameras. Would the justices be more likely to play to their constituencies? Hard to believe after the repeated obtuseness of some presumably smart people in this case.

There are clear bright lines than anyone can see who want to see them, and you have Ginsberg et al tossing up horrors about vaccinations or the religious beliefs of 3M.

If this argument has informed me of anything, it would be that the best way to keep oral arguments from continuing to be displays of partisanship would be to stream them. No one likes to look stupid on camera, where people can see.

Scientific Socialist said...

Toobin is a samurai warrior in the "War on Women". Just ask Casey Greenfield, with whom he sired a child out of wedlock and then made believe as if they didn't exist (http://harvardlawschoolisbogus.wordpress.com/2013/05/25/jeffrey-toobin/). Needless to say that if he wasn't an acclaimed liberal media hack, he'd have to get a real job.








David R. Graham said...

Just about everyone now uses "that" instead of "who." As if a person is a thing. And one wonders why the world appears to be falling down? No nobility of spirit. No heroism. No honor of self-sacrifice. No appreciation of sublimity. No value for forebearance. God, I hate the 21st Century ... so far.

gregq said...

RecChief said...

"And because of that women everywhere in America are being "denied" contraception. "

No, the claim is that they are being denied healthcare. There is a not so subtle difference.

No, they're simply not being empowered to force someone else to pay for their desires. They want it? They can buy it.

You want to call the tune? Then YOU pay the piper.

stlcdr said...

We continue to substitute healthcare for health insurance.

Pregnancy (or not) does not require insurance. Yet, to be denied essentially a free ride is equated to oppression, denial of rights, the 'war on women'.

Unexpected (but not unusual) things happen during pregnancy. Insurance should be for the unexpected.

But, I suspect, we are now ignoring this whole issue - it's a pointless exercise arguing this. We are so accustomed to handouts being available, that we turn pathetic squabbles over how big the handout should be to be major civil rights issues.

stlcdr said...

In any case, isn't The New Yorker some anachronism that only those who wear monacles take seriously?

(As a side note 'monacles' was autocorrected to 'manacles' - the resident racist-in-chief would be so proud).

damikesc said...

Althouse's son could be denied a job because of his sexual orientation with companies that could then claim a religious exemption to hiring him.

I have to ask: Are you retarded?

Nothing in RFRA or this case excuses a company from ALL laws due to religion.

Stop being a hack.

What was the reaction when Justice Roberts came down on the side of the ACA mandate as a tax? I recall quite a bit of vituperation. I think it's fair to say that if a Justice doesn't decide in favor of one's idea of justice, he / she will be maligned. It's human nature.

The issue was he labelled ACA a tax when the proponents, vehemently, claimed it was not one from the moment it was proposed to the day it was found to be one by Roberts.

It also allows the gov't to force you to buy a product.

I wonder if prenatal care would be subject to a religious exception by an employer if the mother was unmarried. There is a Biblical admonition against premarital sex.

Can we address things involving this actual case and not inane hypotheticals?

Douglas said...

Toobin started out well, Harvard Law Review, clerkship on the second circuit. Then he decided to go into punditry. He's now like the lawyers who go to work in boiler rooms selling penny stocks, only he's peddling the Democratic Party instead of Acme International.

PWS said...

I've noticed his writing isn't very good sometimes; even the New Yorker articles could use some editing and better structure.

Seems like Toobin came into the scene around the OJ trial in 95; along with other lawyer/media types, they used that trial to launch: Van Sustern; Roger Cossack too.

Add the Harvard degree, and I guess he's been not bad enough, so he just keeps hanging around.

Pogo is Dead said...

I applaud Althouse's repeated attempts to return to an adult discussion of the law, but the horse is out of the barn.

Look, once Roberts did his tax-penalty bullshit, any old argument that worked is fine. So Toobin is right. The hearings said what he thought they said.

That's what a Progressive education gets you. Bullshit. You're teaching a noble but rejected method involving truth and rules and precedent.

Get over it.

Or as Toobin would say "Mistah Constitution ...he be daid!"

furious_a said...

If I read the New Yorker I'd cancel my subscription if I had a subscription.

furious_a said...
This comment has been removed by the author.
furious_a said...

monacles

It's "mon*o*cles" from the Latin oculus for "eye". Don't get handcuffed by spell check.

wholelottasplainin' said...

Toobin did a hit on Mark Levin a few issues back, sneeringly referring to Levin's views on the Constitution.

Not once did he bother to explain Levin's views, nor did his entire essay ("Our Broken Constitution") deal with such antiquated concepts as "liberty", "freedom" or "limited government".

D said...

Who cares? Thanks to lawyers and politicians, words are meaningless and laws are arbitrary. The best the average citizen can hope for is to survive without ending up destitute and/or in jail over an infraction of a 2000-word collection of random bullshit expanded by 20,000 words bullshit that cover the asses of those who screw people.

The ACA mandates weren't a tax according to the same politicians and lawyers (but I repeat myself) who later argued it was a tax. A genius lawyer, on par with the exalted Obama, twisted himself into rhetorical knots to be cool and fucked people out of their healthcare insurance to uphold a law that was, empirically (have to pass it to know what’s in it), passed for no good reason.

What penumbra or cute, bullshit parsing of words shields someone from an IRS that targets Obama's detractors and is now the enforcement arm of a law that changes on a whim and very literally decides your fate? Yeah, you don’t know and you’ll pay other lawyers $500 an hour to find out.