Category Archives: Justice Chronicles

The Justice Chronicles, Volume 17: Governor Brownback, We Warned You

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I’m upset that this isn’t a bigger story, but the standing Governor Sam Brownback of Kansas is in the political fight of his life. This is news because he is a Republican.

Remember this is Kansas. The state that has declared war on teaching evolution.

Four years ago Sam was elected Kansas’ governor in a landslide after a 14 year career in the U.S. Senate. Sam is a strong believer in “supply side economics” or what many of us call “trickle down economics”. Basically this economic theory claims that if we cut income taxes, especially to the richest among of us, that will stimulate the economy. The people who get to keep more of their money will invest it. Ordinary people spend more money. Small businesses, who benefit from this increase in spending, will expand and hire more workers. The money lost on the tax cuts will be offset by more money in income taxes by the people who are hired and the sales taxes paid by the people who spend more.

The best part of this model is that it both looks good and feels good. Who doesn’t want to raise revenue by cutting taxes? Here’s the problem: it doesn’t work. It’s like all the “eat whatever you want and lose weight” diets.

Four years ago Sam was elected and he promised “an experiment.” OK, I have to ask this: someone who has declared war on science is conducting an experiment? In any case he promised to cut state income taxes on small businesses and wealthy individuals and he did. Small business taxes were cut to 0% (that’s right: no taxes) and the highest individual tax bracket was cut by 24% (you can see this here). He promised that while state revenue may take an immediate hit, it will be soon made up by people and businesses who move to Kansas to take advantage of this experiment.

Did it work? No. The NPR story provides an excellent outline of what happened, but basically this is what happened: small businesses benefitted because they didn’t pay taxes but they didn’t expand because there was no increase in business. NPR spoke with Alex Harb, who owns a computer store in Wichita. He spoke about how his tax cut allowed him to purchase more products for his store, but this has not led to an increase in business. Because of this he has not opened new stores or hired more employees. He has not become a job creator.

Is there a downside? Amazingly the supply side/trickle down guys don’t talk about this. Kansas anticipated a drop of $300 million in revenue while the tax cuts kicked in. Alas, they saw a drop of $600 million with no end in sight. If you are wealthy Kansan or a small business owner you have more money in your pocket. But if you work for the state you’re screwed.

The town of Marquette, Kansas was so devastated by the tax cuts that they had to close their last remaining school. You can read this on the Topeka Capital-Journal website. Amazingly the loss of jobs by the school district wasn’t expected by Sam.

So how has the state done? Sam promised that his “experiment” would show that Kansas’ economy would outpace the economies of neighboring states. Has it?

No. Employment in Kansas has grown by about two percent in Kansas, which sounds fine until you recognize that, according to the NPR article, Kansas has fallen behind the national average and three of the four states that border Kansas (and they all have higher tax rates).

I found this at the web page for the Joint Economic Committee of the U.S. Senate. They track several trends, and I looked at private sector job growth since February of 2010. Kansas and its neighbors (Missouri, Oklahoma, Colorado, and Nebraska) showed these results:

  • Colorado: 12.8%
  • Oklahoma: 10.8%
  • Kansas: 6.8%
  • Nebraska: 6.1%
  • Missouri: .8%

According to this Kansas is in the middle of the pack. That’s fine except Sam promised they would leave their neighbors in the dust. Clearly he hasn’t.

The best part of this story for me is the loyalty Sam expected from his fellow Republicans. He should have recognized Republican loyalty is a synonym for jumbo shrimp. Given the opportunity they headed for safety. This story shows how 100 prominent Republicans are endorsing his Democrat opponent Paul Davis. Do you think these Republicans endorsed Davis out of principle? Neither do I. They made a political decision that their future lies in abandoning Sam after cheering him on.

Sam may win or lose, but if he wins, the people of Kansas lose.

The Justice Chronicles Volume 16: Are We Tipping On Marriage Equality?

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When we see a shift in public opinion about something we sometimes talk about a “tipping point,” that is, a time where it appears that the momentum has shifted and what was once a minority opinion has now become the majority.

It’s hard to remember this, but just a few years ago this was thought impossible. In 1996, 18 years ago, President Clinton signed the Defense of Marriage Act, or DOMA. It mandated that the federal government not recognize any marriage except between one man and one woman.

Fifteen years ago, in 1999, California led the country in issuing domestic partner licenses; it provided some of the benefits of marriage. Other states followed.

Massachusetts, in 2004, became the first state to allow gay couples to marry. But because of DOMA these married couples could not file joint income tax returns, or benefit from each others’ social security or other benefits. There had been a residency requirement (that you had to live in Massachusetts or plan to live there). This was a 1913 law and was intended to prevent Southern interracial couples from coming to Massachusetts to get married. It was repealed in 2008.

Also in 2008 the California Supreme Court ruled that the state could not ban gay marriage under the rules of the state constitution. Almost immediately there were calls to amend the California constitution to prevent marriage equality. Later that year Proposition 8 amended the constitution, though the state upheld the marriages that were performed between June 16th and November 4th.

In 2010 the District Court of Northern California ruled that Proposition 8 was unconstitutional (even though it was an amendment to the constitution). In 2012 the U.S. Ninth Circuit upheld the ruling; it was appealed to the Supreme Court but the Supreme Court ruled against them in 2013. Ever since then marriage equality has been legal in California.

There is much more to this and I encourage everyone to read the entire timeline at here.

The 50 states are divided into 11 circuits: you can view the map at here.

The 4th, 7th, 9th, and 10th circuits have all ruled in favor of marriage equality. In a surprise to many, the Supreme Court refused to hear any these appeals.

It’s a bit of a disappointment to those of us who favor marriage equality; we were hoping for the equivalent of Loving v. Virginia when the Court ruled that bans on interracial marriages were unconstitutional.

That said, it’s a devastating blow to those who oppose marriage equality. It appears that as of today Virginia, Indiana, Wisconsin, Oklahoma, Colorado, and Utah will start issuing marriage licenses to gay couples. Because they belong to the 4th, 7th, 9th, and 10th circuits Wyoming, Kansas, West Virginia, North Carolina, and South Carolina will soon follow.

The Supreme Court could still take cases from the other circuits (the 5th circuit is looking at this) but I think this sends a clear message to the other circuits that the Supreme Court will rule in favor of marriage equality.

It appears that homophobia is the latest casualty in the march for justice.

The Justice Chronicles Volume 15: Burwell v. Hobby Lobby: This Is Going To Cost Us

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The end of June is always an interesting time for me because I get to read a small mountain of Supreme Court opinions. I’ve generally found these opinions easy to read and it gives me a leg up on those who listen to 30 seconds of a news story on the opinion.

Far and away the opinion that has interested me the most was Burwell v. Hobby Lobby Inc.. Here is my (brief) analysis: According to the terms of the Affordable Care Act, if you are an employer you are required to provide health care to your employees (you can get tax credits if you employ only a few people). As part of this you have to provide birth control.

Hobby Lobby and a few other privately owned companies objected because they oppose abortion and feel that certain forms of birth control actually abort a fetus after conception. They filed suit against the Department of Health and Human Services and the court agreed with Hobby Lobby.

Justice Samuel Alito wrote for the 5-4 majority. He argued that if a company is privately owned by a small number of owners and they all agree that a law (in this case the Affordable Care Act) violates their core values, they are not required to violate those values. Much of this was based on the Religious Freedom and Restoration Act.

Justice Ruth Bader Ginsburg wrote the dissent. She argued that this will open a door to much greater problems. If we allow these companies to exempt themselves from laws that violate their beliefs, where do we end? What if another company finds all forms of birth control? Or a company whose beliefs on homosexuality prevent them from employing gays or lesbians?

I find Justice Ginsberg’s arguements compelling. To the extent that government has no business deciding which relgious beliefs are appropriate, we rely on people of those faiths to determine what they find offensive. And while mainstream America supports gay rights and birth control, good people of different faiths oppose them. If you are an employee of a small, privately held company, you are essentially a hostage of their beliefs even if they are not your own.

I read the opinion (I downloaded it for free on my iPad) and see a disconnect with what I’ve been reading in other outlets. The most troublind disconnect I’ve found is the impression given that these will only apply to small companies. But the opinion applies to companies with only a few owners, not employees. For example, Hobby Lobby is owned by one family, but they employ 16,000 people. Koch Industries employ 60,000. Simply put, as long as these companies don’t go public they can subject their employees to anything they want.

This wasn’t prominent in the decision, but I think this is an important issues: while Hobby Lobby and other companies are privately held, they are also incorporated. This allows the family financial protection if they go bankrupt; the creditors can only go after assets in the company and not personal assets. It seems to me, though, that these companies are trying to have it both ways. If they want protection for themselves, shouldn’t there be some protection for their employees? If these families see their companies as an extension of their own values, shouldn’t they then be compelled to “go all in” and not protect themselves?

I wonder how long it will take for the Court to see that they’ve opened a bad door.

The Justice Chronicles Volume 14, The Money Chronicles Volume 10: Happy Birthday Federal Reserve

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Hallmark missed this, but yesterday was the 100th anniversary of the founding of the Federal Reserve, sometimes abbreviated as the Fed. The Federal Reserve is a confederation of 12 banks located around the country, and they are “the banks of last resort.” In other words, during times when the economy is in recession or doing poorly, banks can borrow money from the Federal Reserve to stay solvent.

This didn’t come out of nowhere. There’s an excellent article at NPR’s Planet Money blog. The article begins with the San Francisco Earthquake of 1906. Insurance companies in England were paying huge claims and so much money was leaving English banks that they clamped down the money flow to American banks. This led to some American banks failing, or not being able to pay their bills. Since there was no FDIC or bank insurance, any money deposited in those banks was lost.

If this wasn’t bad enough, people who had their money in safe banks began to panic and tried to withdraw all their money. This led to bank runs, and eventually to the Panic of 1907. The federal government had no power to do anything, and the panic was ended only when J.P. Morgan gathered other wealthy bankers and put up the money to keep the American economy going.

Senator Nelson Aldrich (R-RI) saw this and realized that panics were become too frequent and we could not depend on the wealthiest people to bail out the entire country. He introduced legislation that year to create the Federal Reserve. It took a while to pass both houses of Congress, but it did and on December 23, 1913 President Wilson signed it into law.

In addition to being the bank of last resort for troubled banks, the Fed also set the interest rate at which they will lend, and this sets the standard for the interest rate banks lend to other banks. During times of inflation the Fed will increase the interest rate to “tighten up” the money supply. During times of recession (as happened in 2008) they will lower interest rates to encourage borrowing.

There are those who oppose the Fed and they do this for two reason. First, they say that the board of governors (who govern the Fed) have too much power. Since they essentially set interest rates for much of the money flow in the country they control too much of what happens in the economy. They also believe that since banks know they will be bailed out, they can be irresponsible. If the banks keep all their profits and don’t have to worry about their losses, they have no reason to be careful.

I understand both of these arguments but in the final analysis I think we’re better off giving the government the flexibility to guide the economy.

The Justice Chronicles Volume 13: Nelson Mandela (1918-2013)

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His death was supposed to be a footnote. It was supposed to be a local story, buried in the inside pages of the paper: Imprisoned Terrorist Nelson Mandela dies in Prison.

It didn’t happen that way. In the days since his death he has made worldwide headlines. Frankly, it was time. He was 95 years old and had been in critical condition since developing a lung infection nearly 6 months ago. He was home but his home was transformed into an intensive care unit.

Mr. Mandela’s life story is largely public and known. After becoming a lawyer in apartheid South Africa he joined the African National Congress. He first embraced the idea of nonviolence in battling apartheid, but later abandoned that and co founded a militant wing called Spear of the Nation. Because of his actions he needed to go underground, but was found and arrested in 1962. Tried and convicted of trying to overthrow the government, he expected to be sentenced to death but instead was sentenced to life in prison.

For the next 27 years he languished in prison. By the 1970s and 1980s he became the public face of the injustice of apartheid, even though there were no pictures taken of him since 1963. His release from prison in 1990 seemed a miracle.

But for me, his release wasn’t the miracle. It’s what happened to him while in prison and how he sculpted post apartheid South Africa. While nobody knew in 1990 how he would spend the rest of his life, many feared he would take the opportunity to exact revenge on those who harmed him. They feared he would respond to injustice with injustice of his own.

He didn’t. After his election as President of South Africa in 1994 he founded the Truth and Reconciliation Committee. He knew that truth must come before reconciliation, and that reconciliation is the only path to true peace. As I think about this, I can’t help but remember Archbishop Tutu’s belief about forgiveness:

Forgiving is not forgetting; its actually remembering–remembering and not using your right to hit back. Its a second chance for a new beginning. And the remembering part is particularly important. Especially if you don’t want to repeat what happened.

His time in prison changed him from someone who advocated violent resistance to someone who saw that revenge only continues the cycle of violence. He loved his nation and that love healed him of his anger toward his captors.

We are all better for it. Much like Gandhi and Martin Luther King before him, he taught us the ferocious power of love and forgiveness. I’m grateful that Mr. Mandela is the only one of the three to not die violently.

For those of us who live on, our mandate is clear: we are called not only to stop tolerating injustice, we are called to forgive those who benefited from it. Once those who create or benefit from injustice are defeated, we must not exact revenge on them. Their sin must be called out, but they must be forgiven. Only then will there be peace.

The Justice Chronicles Volume 12: Marriage Gets More Inclusive

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Last month the Supreme Court handed down decisions on United States v. Windsor (DOMA) and Hollingsworth v. Perry (Proposition 8). They covered different issues and made different claims, but both opened up marriage to gay couples.

This shouldn’t surprise readers of my writing, but I was disappointed with much of the news coverage. Most of what I saw from the major networks held up the decisions to “who won, who lost” and missed the reasoning behind the decisions. I was interested in this and also which justices landed on which side.

The DOMA case was 5-4; Justice Kennedy wrote the opinion and was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justices Roberts, Scalia, and Alito wrote dissents; Justice Thomas joined the dissents of Justices Scalia and Alito.

DOMA (the Defense of Marriage Act) was passed by Congress and signed by President Clinton in 1996. Basically it mandated that the federal government not recognize gay marriage even if the marriage is legal where it was performed. That meant gay couples who legally married were not eligible for such things as joint filing of income taxes, survivor benefits for Social Security, etc. The lawsuit was brought by the widow of a lesbian marriage; because their marriage was not recognized by the federal government the surviving member owed $363,053 in probate taxes. If not for DOMA she would not have owed anything (you automatically get all your spouse’s assets tax free when he or she dies). She claimed that the federal government must recognize all valid marriages, not just heterosexual ones. She was also able to show that DOMA caused her harm to the tune of $363,053.

The majority of the court (led by Justice Kennedy) argued that since states issue marriage licenses the federal government can’t decide which marriages are valid and which aren’t. Different states have different rules about who can marry (e.g. minimum age) and the federal government recognizes any marriage the state recognizes. DOMA puts homosexual marriages in a different case for no good reason

The dissents argue a few points. Justice Scalia argues that the court should never have taken the case (it’s a fairly technical point that he makes well). Most of the rest are what we’ve come to expect: that traditional (opposite sex) marriages are the norm because only they can produce children. They also decry the demonization they have suffered: opponents of same sex marriage are right only because they are demonized as homophobes and bigots.

In a sense they have a point: they are homophobes and bigots. The justices who dissented argue several points that make no sense and weak arguments: “this decision refutes the will of the majority,” “this decision goes beyond what everyone used to assume about marriage,” “this decision allows people to love one another in a way that offends me,” etc.

Simply put, this allows adults to marry each other. Granted, homosexual marriages cannot produce children but neither can marriages of heterosexual couples where the woman is post-menopausal or where one (or both) have been sterilized. We, who are heterosexual, cannot ban marriages that we find gross and icky. Marriages in the this country haven’t been homosexual, but in many states marriages weren’t biracial until 1967 (Loving v. Virginia).

The Proposition 8 case was more interesting in the lineup. The 5 person majority consisted of Justice Roberts (who wrote the opinion) and was joined by Justices Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy wrote the dissent and was joined by Justices Thomas, Alito, and Sotomayer.

The Court ruled that they weren’t going to rule on the merits of the Prop 8 case because the defendants had no standing (they had no right to bring the case). The case originated with several gay couples who wanted to marry but were prevented by Prop 8; they filed suit against the state of California. In the first round the court ruled for the plaintiffs, and the state of California decided not to appeal. Supporters of Prop 8 stepped in as defendants, claiming that they had standing because they were the ones who collected the signatures for the ballot initiative. The Court ruled that they may have had standing during the process of putting the measure on the ballot, but once it passed, only the state of California could defend the proposition.

This was a mixed result for supporters of gay marriage. While this will allow gay marriages in California once again, it does not affect laws in other states. Many of us wanted the Court to go further and rule that Prop 8 is unconstitutional because the states don’t have the right to ban gay marriage. They wanted a gay version of Loving v. Virginia.

What next? Proponents of gay marriage have 2 routes: they can bring suit in a state that currently bans gay marriage, or they can start working on the state legislature level to pass laws that allow gay marriage. I’m guessing that groups will try both, and I suspect that the days of homophobia in marriage are numbered.

The Justice Chronicles Volume 11: Thoughts on Edward Snowden, The NSA, and the 4th Amendment

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Earlier this month Edward Snowden, an employee of Booz Allen Hamilton leaked information that the National Security Agency has been collecting phone records of US citizens. It’s been a huge story and awakened a debate on privacy, security, and the 4th Amendment.

Unfortunately any story that hits the 24 hour news cycle loses all nuance and much its accuracy; we should begin with a few of the facts of the case. Here is what I’ve gleaned:

The NSA (National Security Agency) is tasked with protecting our nation and citizens from people and organizations who wish to harm us. They are secret by nature and work in the shadows; most of us don’t know what they do. The information age, global connectedness, and the internet has led to an explosion in both the ability to harm us and the ability of the agency to find out what they are doing. The NSA has worked hard to collect information, not only by people who mean us harm, but information that we might need later.

Earlier this month Edward Snowden leaked to the media the fact that the NSA is collecting phone records of nearly every call made here. If you think about all the calls you’ve made in the last month, multiplied by the 314,000,000 people who live here, it’s a large number. To be clear, they haven’t been listening in on every (or any) conversation. They’ve been collecting the data on the calls that we’ve made: not what we’ve said but who we’ve called and how long we’ve talked. They can’t access any of this information without a warrant from something called the “Foreign Intelligence Surveillance Court” (FISA).

Edward Snowden is in legal trouble because the Obama administration claims that by leaking this information he has committed espionage, normally defined as giving aid and comfort to the enemy. In other words, by telling us that the NSA is collecting this information we are “tipping our hand” and allowing our enemies to find other ways to harm us. This is the part I’m finding troubling.

I have to confess a bias here: I look at the 4th Amendment the way the NRA looks at the 2nd Amendment. The 4th Amendment says this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

When this amendment was written there was a limited ability to search and seize. That ability has dramatically changed with technology. For example, in the 19th Century the invention of the telegraph and telephone allowed for private communications to travel from one place to another. The courts could have easily found that the 4th Amendment applied only to the physical limits of houses, papers, and effects, but it didn’t. Law enforcement still needs a search warrant to tap telephone calls.

But what about now? What limits do we have on tracking our cell phone calls, emails, or social media platforms? Are we in the 19th Century where your telephone is part of your house or the 21st Century where even your trip to 7 Eleven is videotaped?

In my role as a hospice chaplain I am in public view a good part of the day. My 2006 Toyota Prius has an “event data recorder” that records (among other things) my speed, steering, and whether or not I’m wearing my seatbelt. Since I have a GPS my location is also recorded. Several of my patients live in gated communities or other places that have video surveillance. Most of the places where I stop for lunch or a soda also videotape. Anytime I get cash out of at ATM or use my credit card, that is recorded. During all this time I’m either alone or with people who don’t know me, and I carry with me the presumption of privacy.

But is that presumption is false? The government has the ability (though the court system) to look at all of this information. If all this tracking comes under the same eyes, my life would not be far off from Winston Smith in 1984 by George Orwell.

I think we can all agree that there needs to be limits on what can be revealed on us, but conversations about these limits needs to be public.

This is the point where I find myself in agreement with Mr. Snowden. We cannot have a dialogue about the limits of the 4th Amendment if we don’t know what the rules are. President Obama wants to prosecute him, claiming that revealing this information tips off our enemies about what kind of information they gather.

This type of argument is not new. When the Bush administration was trying to convince us that we needed to go to war against Iraq, they claimed we knew the location and existence of weapons of mass destruction. How did the administration know this? They couldn’t tell us because that information would tip the hand. Later, when we all learned that these weapons didn’t exist, many of us believed that they didn’t show us the evidence because they simply didn’t have it. Had we known the evidence either didn’t exist, or was unreliable, we would not have favored going to war.

Most people don’t feel as strongly about the 4th Amendment as I do. There is often the presumption that if you have nothing to hide, you have nothing to fear, and government surveillance in the interest of catching bad guys is always allowed. I disagree, and I believe the framers of the Constitution did too. They knew this amendment would make prosecution of criminals more difficult (as do jury trials and the prohibition to compel someone to testify against himself), but they thought it was worth it. So do I.

The Justice Chronicles Volume 10: There He Goes Again (Hopefully for the Last time)

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It’s been five days since the election and binders have been written about what happened and why. The day after the election Governor Romney held a conference call with major donors (that CNN and other news organizations joined) about what happened. This was his chance to be magnanimous, thank his supporters, and move on. That’s what he did in his concession speech.

Instead, he stated that President Obama won the election by pandering to the voters. He said (and this comes from multiple sources on a few different phone calls):

  • What the president, president’s campaign did was focus on certain members of his base coalition, give them extraordinary financial gifts from the government, and then work very aggressively to turn them out to vote
  • With regards to the young people, for instance, a forgiveness of college loan interest, was a big gift
  • Free contraceptives were very big with young college-aged women
  • And then, finally, Obamacare also made a difference for them, because as you know, anybody now 26 years of age and younger was now going to be part of their parents’ plan, and that was a big gift to young people. They turned out in large numbers, a larger share in this election even than in 2008

The best part of this? I don’t even need to react because other Republicans already have.

Newt Gingrich said this: I just think it’s nuts. I mean, first of all, it’s insulting. The job of a political leader in part is to understand the people. If we can’t offer a better future that is believable to more people, we’re not going to win.

Piyush (Bobby) Jindal: [A winning strategy] does not involve insulting [voters] and saying their votes were bought. I’m proud to have campaigned for him across the country, but I absolutely reject what he said. Look, we as the Republican Party have to campaign for every single vote. If we want people to like us, we have to like them first. And you don’t start to like people by insulting them and saying their votes were bought.

Lindsay Graham: Rhetoric like this keeps digging a hole for the Republican party. We’re in a big hole. We’re not getting out of it by comments like [Romney’s]. When you’re in a hole, stop digging. He keeps digging.

To this I add only this: Justice is not a gift. Providing people what they need is the role of government. I’m grateful Romney lost.

PS: You can still order Romney campaign stuff on his webpage.

The Justice Chronicles Volume 9: There He Goes Again

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Governor Romney has proven once again that (1) He still doesn’t get it, and (2) There are no limits on his ability to shop for a moral compass.

A few weeks ago the Governor was interviewed on 60 Minutes and, as you might expect, he was asked about health care. Scott Pelley asked him this question: “Do you think the government has a responsibility to provide health care to the 50 million Americans who don’t have it today?” He responded:

Well, we do provide care for people who don’t have insurance. If someone has a heart attack, they don’t sit in their apartment and die. We pick them up in an ambulance, and take them to the hospital and give them care. And different states have different ways of providing for that care.

His implication is clear: If you don’t have health insurance you don’t have to worry. Just go to the emergency room and you’ll be taken care of. That’s fine, but it’s just not true. The Emergency Medical Treatment and Active Labor Act requires that anyone who comes to a hospital emergency room be provided an examination and needed stabilizing treatment. In other words, if you show up in an emergency room with chest pain, they have to make sure you are stable. In that sense Governor Romney is correct that emergency room has to stop your chest pain.

But they don’t need to stop your heart disease. They only need to stop your symptoms. So what if your symptoms aren’t cardiac? Glad you asked. There is an article in the today’s Los Angeles Times about Jode Towe.

On the surface, he is living the Republican dream. He started a business (as truck driver), but he couldn’t afford to buy health insurance on his own. His only option was to hope he didn’t get sick or injured. Things were going well until he noticed increased fatigue and “something” in the back of his throat. He paid out of pocket to see a doctor, and the results were not good. He’s not sure what is in his throat, but there is at least a chance it’s cancer. A biopsy would be the next logical step but that (and a tonsilectomy) would likely cost $4,000; if there is cancer any treatment would cost thousands of dollars, well beyond Mr. Towe’s ability to pay.

So what if he takes Governor Romney’s advice and go to the emergency room? All they are required to do is stabilize his symptoms (essentially a throat lozenge). Mr. Towe would also be responsible for any charges. In many ways that’s the worst part of Mr. Romney’s advice. If someone goes to the emergency room and can’t afford to pay, the hospital ends up eating the cost, but the hospital can still try to collect the money. They are counting on you mortgaging your house, selling your blood, hitting up your family, etc. If that doesn’t work they turn the case over to a collection agency that trashes your credit score. Nobody wins: the hospital doesn’t get their money and your financial future is compromised.

When the Affordable Care Act is fully implemented in 2014, Mr. Towe will be offered affordable health insurance, even with his pre-existing condition. Hopefully he’ll still be around then.

Hopefully Governor Romney won’t have a chance to repeal the Affordable Care Act.

The Justice Chronicles Volume 8: Maybe now DOMA is Doomed

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With all the attention given to the Presidential campaign, an important story isn’t getting as much publicity as it should. On October 18, 2012 the United States Court of Appeals for the Second Circuit handed down a ruling in the case of Windsor v. US that the Defense of Marriage Act or DOMA is unconstitutional.

In 1996 the Congress passed, and President Clinton signed, DOMA. Among other things DOMA prohibits the Internal Revenue Service from recognizing same sex marriages, even if the couple were legally married.

I’m taking the facts of the case from the opinion itself. Edith (Edie) Windsor and Thea Spyer were legally married in Canada in 2007 (though they had been a couple for 44 years). Thea died in 2009 in New York, and had they been a heterosexual couple, Edie would have been classified as the surviving spouse for tax purposes. Because of DOMA their marriage wasn’t recognized by the IRS and Edie owed $363,053 in taxes to inherit Thea’s estate. Under federal tax law, a spouse who dies can leave assets, including the family home, to the other spouse without incurring estate taxes, but because of DOMA Edie was not considered Thea’s spouse and is responsible for those taxes. Edie sued in federal court to return the $363,053, arguing that she was Thea’s spouse; in 2011 New York began allowing same sex marriages and the state recognized their union.

There are many nuances to this case, but essentially the court found that DOMA is “an unprecedented intrusion into an area of traditional state regulation” as the states grant marriage licenses.

Clearly the issue of gay marriage is going to the Supreme Court in either this session or the next. But I have to confess a chuckle over this case as it’s decided on the basis of federal intrusion while the Republican Party consistently reminds us that they are the party to “get government off our backs.” I’m guessing they don’t want government off our backs on this one.

Personal note: DOMA claims to protect traditional marriage. As a heterosexual married man, can anyone tell me how gay marriage threatens my marriage? If so, I’m happy to support DOMA. In the meantime I’m on the side of opposing homophobia.