Equality and Liberty

by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law

The Obama administration recently offered more accommodations to the religious employers who oppose women’s reproductive freedom and seek exemption from the Affordable Care Act’s mandate that employee insurance coverage extend to contraception and sterilization. The employers won two big victories. First, the definition of religious employer was expanded to include not only organizations where everyone shares one faith but also those that employ or provide services to individuals who are not members of the same religious community. Second, the employers will not have to provide the coverage. Instead, the insurance companies will independently contact employees and make separate contraceptive policies available to them at no charge. The insurance companies will cover the costs of this new arrangement and, presumably, pass them on to other consumers.

The new rules are responsive to repeated and vociferous complaints about the president’s war on religion. As soon as the Secretary of Health and Human Services, Kathleen Sebelius, first announced that religious employers would be expected to provide contraceptive and sterilization coverage at no cost to employees, the nation’s Catholic bishops attacked the president for his unprecedented assault on religious freedom. Those critics ignored the fact that the idea of requiring employers to protect women’s equality by providing insurance was not new or unprecedented. Twenty-six states have similar laws, and the highest courts of New York and California upheld their women’s contraceptive equity statutes against First Amendment claims.

With the federal act currently under challenge in 45 lawsuits, however, the administration chose to compromise rather than to press the legality of its actions on behalf of women’s equality. The strategy of compromise has been unsuccessful. Even the new accommodations have not satisfied the administration’s critics. The Catholic bishops still believethat the president should compromise even more by extending the exemption to secular, for-profit corporations run by religious individuals. And Kyle Duncan, the general counsel of the Becket Fund for Religious Liberty, which has sponsored much of the litigation against the mandate, stated that the new rules do “nothing to protect the religious freedom of millions of Americans.”

by Jeremy Leaming

The DOJ white paper advancing broad and opaque arguments for the executive branch to kill U.S. citizens thought to be connected with Al Qaeda is a “radical jurisprudential notion,” Salon’s David Sirota writes. He calls the jurisprudential notion “Too Big to Curtail.”

That moniker, he continues, “is the most accurate label to describe the machinery of the government’s ever-expanding drone war.”

The DOJ’s white paper concludes three conditions must be met for the federal government to kill a U.S. citizen who is integral to Al Qaeda or “an associated force of” of the terrorist group without violating the Constitution. They require a high-ranking federal official who says the person targeted for killing is an “imminent threat to the country,” capturing the person is “infeasible,” and the lethal operation doesn’t violate laws governing use of force during war time.

Sirota says the “most harrowing takeaway” from the DOJ document is that the killing of a U.S. citizen abroad can be made by a high-ranking government official even if there is no “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Essentially, Sirota continues, the white paper maintains that the “president doesn’t actually need evidence to order someone’s death.” 

The Dish in a post dubbed, “The Executive As Executioner,” includes comment from an array of folks, including the ACLU’s Deputy Legal Director Jameel Jaffer.