There’s still a “stay” on the decision. This means it won’t go into effect at least until appeals to the US Supreme Court are over with. So gay couples still can’t marry in California. The appeals (assuming there will be some) probably won’t be decided until the fall. So again we wait.

Per the ruling, it was quite narrow and rather odd. The federal appellate court managed to implicitly limit its ruling just to California, only part of the 9th Circuit’s jurisdiction. And it doesn’t look like it’ll be a terribly helpful precedent for any other jurisdictions either. Here’s why.

California’s constitution guaranteed same-sex couples the right to marry. Then Prop 8 took that right away. The question was whether there was any legitimate reason to remove that state constitutional right. The answer: nope. It was purely discriminatory such that it violated the federal constitution’s equal protection clause. It served only to slap a badge of inferiority on same sex couples.

The court noted that the ban just stripped the ability of gay couples to use “marriage” as a legal designation of their union. Because that is all the ban did, it couldn’t have been enacted to protect “childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples.” Those were some of the reasons Prop 8 proponents gave for the ban.

Other jurisdictions bans are not as narrow as Prop 8. They discriminate with more than just the “marriage” label. They take away from same-sex couples all sorts of other rights, like the ability to adopt, be dependents on their partner’s healthcare, be the designated health surrogate, etc. So those other states’ bans might not have the same equal protection violation as Prop 8.

This to me is weird. It seems that if a state has a broader marriage discrimination law, it is more likely to stand. Why? Because there’s more wiggle room to argue that it was enacted for reasons beyond sheer discrimination. (I don’t think you’ll find a rational argument for a ban; I’m just saying there’s more room for one.)

Prop 8 is also unique in that it took away a right. This differs from other states that had never established marriage equality in the first place.Other states banned it preemptively. In the law, there’s often a distinction between taking away versus not granting in the first place. (Not that I think that distinction has a difference. But again, there’s room for one.)

In sum: Prop 8 is tossed for now. Appeals pending. No more arbitrary discrimination in removing rights of some people and not of others.

Sibelius’ move here shows a compromise of interests surrounding reproductive health. She’s willing to go against scientific recommendations when it comes to scientific recommendations of giving kids better access to certain birth control. But she’s also up for giving adults easy and cheap access to the same. Now, I think her compromise is rather wasteful, politically. I doubt the Church lauded her with much praise for her decision regarding Plan B. Moreover, that decision does nothing to quell their complaints over this new access rule.  Still, perhaps for the public at large, the compromise will be seen as keeping in the spirit of pluralism.

Can Obama’s Administration force the Church to comply? Doesn’t it violate the Church’s free exercise? To be sure, the rule exempts houses of worship and their employees, as well as other institutions whose primary purpose is to promote religious belief. They get to deny reproductive medicine all they want.

If, however, you’re a college, medical institution, or social service, you must comply with the rule, even if you’re religiously affiliated. does a Catholic hospital get to impose their anti-birth control preferences on its patients, who might well be non-Catholic? The law is still figuring this out. It seems that when an institution is a public institution, it should be subject to public (secular) law. (This aligns with my view on how employment law should work with such orgs. See older blog posts.) If the institution benefits from a federal medical system, it should also endure that system’s concordant burdens.

Constitutional law reflects as much. Of all people, Justice Scalia delivered the opinion of the Court in the seminal case of Employment Division v. Smith (1990). In this case, some Oregon employees were fired for smoking peyote and denied unemployment benefits because their terminations were due to misconduct. They sued saying they smoked it for religious purposes and that the Oregon ban on peyote use wasn’t allowed to stomp on their free exercise of this religious practice. The employees lost. Scalia held that “The Free Exercise Clause permits the State to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use.” He reasoned:

Although a State would be “prohibiting the free exercise [of religion]” in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.

Just as the religious individuals had to comply with the peyote ban, the religiously-affiliated institutions must comply with the contraceptive services mandate. The mandate is incidental to performance of an that their religion requires, and it’s not directed to religious practice. The rule is general and religiously neutral as to its application. (Cf. Church of Lukumi Babalu Aye v. City of Hialeah (1993).) It just serves to stop health plans from denying these services, regardless of whether the plan espouses some religious motivation for the denials.

Public health wins. This, of course, could be flipped around were the Supreme Court to take up review. But for now, it seems the Constitution supports the rule.

Why does it matter? Romney certainly thought it was a distraction to the “real” issues of the campaign. That he thinks this way strikes me either is dishonest or out of touch. His income matters because his tax plan affects it. And when that plan appears to help Mitt grossly enrich himself beyond his current mondo riches, that raises suspicion. Doesn’t he realize how much this disproportionately helps him?

If he were to espouse tax fixes that only incidentally or neutrally affected his income, that’d be different. But with severely reduced taxes on capital gains and dividends (where he got about half his income), that would (along with his other tax ideas) leave him paying about 15% of his income in taxes, whereas under Obama’s proposed plan, he’d be paying out about 23%, and if the Bush tax cuts were allowed to expire outright, he’d be paying out about 26%. (Source.)

To reduce suspicion and make it look like he honest and in touch, he could donate to the federal government the difference he’d otherwise get from his tax plan. I’ll bet you 10 Romneys that won’t happen. (I know, I know, I will never be able to afford that, but still.)

I think one answer lies with colleges. They are in the best position to guide the skilled sectors of our workforce. Students should know what majors are dead-ends when it comes to getting jobs.  One study says there’s virtually no unemployment in “geological and geological and geophysical engineering, military technologies, pharmacology and school student counseling,” whereas the highest unemployment is found in “social psychology, nuclear engineering, and educational administration and supervision.” Would you have guessed that a nuclear engineer would be S.O.L. as compared to a school counselor? I would never have predicted that. Giving students this info might keep them from learning themselves into a corner.

Colleges can also structure their curriculum to reflect the market situation. For example, if a major is associated with only a few jobs, then limit the number of students who are allowed to take that major. Entice students to take majors that are highly marketable. Many colleges work with industry to figure out what’s needed already. It’s doable.

It seems dishonest for colleges to charge a fortune for a major that creates a skill-set so mismatched with market needs. I know we can’t always anticipate market needs, but an approximation wouldn’t be that unreasonable. I also understand that colleges aren’t just servants to the market. But as cultivators of the mind, it’d be nice of they shaped minds so as to be made of good use.

If colleges  guide their students with respect to market realities, it’ll help clear up unemployment among less educated workers as well.  Right now only half of recent college grads get a job that requires a degree. (NYT.) Loads of college grads are taking jobs at restaurants, convenience stores, taxi services, and gas stations. The number of grads taking those jobs rose 17% in 2009 compared to 2008. They are filling jobs that people with less education should be taking. Fix this, and we actually do get a trickle-down effect. That is, education college students for skilled jobs, and they’ll stop taking less-skilled jobs, thereby freeing up the jobs for those who lack college education.

1. Location. The worker and the job are in different geographic areas. I have yet to see a nice map overlaying worker location and job location, so I can’t say much about this guess.

2. Lag. It takes time for job and worker to find one another. I can’t tell how long these jobs linger on the market, just waiting for the perfect worker to stroll along. The Bureau somewhat accounts for any lag by counting only those “job openings” where “work could start within 30 days regardless of whether a suitable candidate is found.” Still, it’s hard to say if lag matters.

3. Skills mismatch. I think the most significant factor that explains why we don’t have zero job openings and only 3.6 million unemployed workers is that there is a mismatch between worker skills and job requirements. “Hilda Solis, U.S. Labor Secretary, commented in her address that this mismatch is one of the reasons for the high unemployment rate.” (Source.) The CEO from Siemens said as much in a recent Huffington Post article. He reported that his company’s “15 divisions in industry, energy and healthcare employed around 405,000 U.S. workers last year,” and it “has around 3,200 job vacancies,” which he says have been no easy task to fill.  The Wall Street Journal recently reported research that 1/3rd of the unemployment increase is due to college-educated workers lacking skills need for the jobs available.  (There are still far more unemployed less-educated workers, to be sure.)  And the Telegraph in the UK has reported similar mismatches. One PBS report chalks up the mismatch to structural unemployment, which means that “because of the progress of technology and globalization, lots of our old jobs are gone, and new ones require skills that many just don’t have.”

How might we fill the gap? Next post, I’ll discuss.

Going back to the test I cooked up, the first question is whether the job is sectarian; let’s say it is and move on. Second question: Is the act of discrimination in keeping with a religious tenet? In the last case I wrote about, the parochial school fired a woman on account of her disability. Discrimination by disability was, in my opinion, not in keeping with any religious tenet of that church. I believe the parochial school should have been liable to the teacher for damages. (The court went the other way.) Here, however, the teacher did violate a religious tenet, namely, the church’s bar on unmarried cohabitation.

Interestingly, the church was okay with the teacher’s pregnancy out of wedlock. There was no tenet she violated there. Rather, it was just that she refused to marry her boyfriend or stop living with him. So even though I think what the church did is crummy, I also think it should have been legally permitted to do it.

Now to be sure, the test I cooked up is not the law. Henry was decided on very different grounds from my little test. In short, the court decided that the church was not an “employer” subject to anti-discrimination statutes because religious organizations are exempt from the statutory definition of “employer.” Quick and dirty. And probably correct.

I just think the law gives too big a pass for discriminators. Currently, if you want to discriminate in your organization, it appears that you can just slap a religious badge on its back and fire (pun intended) away. I have a problem with that. I don’t like how easy it is to make an end-run around the law, especially when many of these organizations benefit from government funds and services.

The most compelling component of the Court’s reasoning rests with statistical evidence denoting harms associated with polygyny. The harms were reported as follows:

a)    As polygyny in a society increases, the discrepancy between law and practice concerning women’s equality also increases;

b)    Women in polygynous states have more children on average than women in less polygynous states. This trend holds true for girls/women between the ages of 15 and 19;

c)     Polygyny exerts an effect on children’s welfare. Girls and boys are both less likely to receive primary or secondary education as polygyny becomes more frequent. The effect is most pronounced for both genders with respect to secondary education;

d)    Increased polygyny heightens the difference in the occurrence of HIV infection between women and men; women become more likely relative to men to suffer from HIV as polygyny becomes more common;

e)    As polygyny increases, the average age at which women marry declines substantially;

f)      Maternal mortality increases dramatically as the degree of polygyny increases;

g)    Women in states with greater polygyny die at a younger age on average. This is likely, at least in part, because they are more likely to die in childbirth, as noted;

h)    As polygyny becomes more frequent, sex trafficking becomes more prevalent;

i)       As polygyny becomes more frequent, female genital mutilation increases;

j)      Women sustain greater domestic violence in polygynous societies;

k)     Differential legal treatment of women relative to men increases, to the detriment of women, in more polygynous societies;

l)       States with higher levels of polygyny spend more money per capita on defence, particularly on arms expenditures; and

m)  States with higher levels of polygyny display fewer political rights and civil liberties for both men and women than those with less polygyny.

These conclusions were drawn from a study that “manifested in over two hundred variables measured across the arc of as many as 171 different countries,” which included “every country in the world with a population greater than 200,000.”

The Court was quick to point out that correlation does not prove causation but that the evidence was nevertheless sufficient to justify Canada’s proscription against polygyny. And while absence of evidence is not evidence of absence, it is worth noting here that gay marriage lacks (perhaps entirely) polygyny’s associated parade of horribles.  The Court summarized:

Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists.

[ ]

[T]here is no such thing as so-called “good polygamy”.

Is there such a thing as “good gay marriage”? It’s a shame we didn’t see the same statistical rigor in the opinion applied to monogamy, but still, the Court generally plugged the relative positives that come with monogamy. It listed numerous reasons (historically) for the State’s interest in sanctioning such marriages, including: mutual love and companionship, a clear mechanism for inheritance, habituation of children to notions of equality among individuals, equality generally, and fidelity. It seems to me these qualities apply just as well to gay marriage as they do to straight marriage, and it will be no surprise when the statistics pan out likewise.

Back in 1997 some environmental activists locked arms to get in the way of demolition equipment that would mow down some old growth trees. The cops could not get the activists to budge, so they were pepper-sprayed, much like the UC Davis protestors. The act sued the cop and others. The court concluded that pepper-spraying non-violent protestors was excessive and illegal, and further concluded that the cops weren’t immune from being sued because of it.

The court basically asks whether the cop’s actions are objectively reasonable. It starts by determining whether there’s a constitutional right at stake. In Lundberg, there was: The 4^th Amendment, which protects you from unreasonable seizure. That is, if the cops detain or arrest you, they inevitably must use some force or coercion, and the question is whether that force or coercion is reasonable. The test digs deeper by asking what an objectively reasonable cop would have done in the situation.

Here it might help to remember the big case on the subject of police force under the 4^th amendment. In Graham v. Connor (1989) cops stopped a driver with diabetes who was having a bad insulin reaction. They said no wrongdoing was involved and drove him home. The driver said the cops bashed his head a few times before they left. When analyzing whether force was reasonable, the court considered the severity of the crime at issue, the immediate threat posed by the guy, whether he was actively resisting arrest, and whether he was attempting to evade arrest by fleeing.

In the UC Davis case, the crime involved is probably the misdemeanor of trespass. The protestors were not posing a threat. At worst, they were just in the way, embarrassing the school, and annoying the cops. They weren’t actively resisting arrest or fleeing, but I suppose they were not complying with police commands. And all this – being entirely similar to the Lundgren case – suggests that the cop broke the law and is liable. Time will tell if he and others resist this conclusion.

Is It begins with us a good slogan?  “Begins” seems inappropriate. For second term in office, it’s more like “continues,” but It continues with us just sounds weird.  Obama’s slogan does have the vacuous aspirational quality that some good campaigns are made of, but is it the best?

What makes a good slogan? Probably a lot of what makes a good product advertisement or good speech.  First, it embraces a value. Second, it puts you in the person’s (or product’s) paradigm, the way they tell the story about the world. Third, it hints that the competition is missing the value. Also, maybe this is just me, but what should run through each of those parts is a certain kind of artistry or elegance, a subtlety of sorts.

Applying the above principles to some products and their respective slogans, consider:

Apple – Think different. The value is creativity. The Apple world is one where standing out from the pack is good. It makes PCs look dull.

Wheaties – The breakfast of champions. The value is success. The Wheaties world tells a story of accomplishment. Other breakfast cereals are for losers.

Nike – Just do it. The value is determination or perseverance. Nike creates a picture of hardcore athletes. Other shoes wimp out.

Coca Cola – It’s the real thing. The value is authenticity. The Coke paradigm cares about truth and quality. Other sodas are fakes.

Some election campaign slogans have caught on, but it seems a great many fall short. They tend to pun out and be silly. For example: Keep cool, keep Coolidge; I like Ike; Grant us another term; I’m just wild about Harry. Advertising has changed over the years, so maybe those worked back in the day. Maybe the idea was to be catchy and light-hearted so that the slogan sticks in voters’ heads in a positive way? I’m not saying that’s a bad idea, but for some reason it strikes me as anachronistic.

For modern day, Reagan’s were probably among the best slogans: Let’s make America great again and It’s morning in America. The value is improvement. The world is one of rebirth. The slogan makes other candidates look backward and go-nowhere.

What’s particularly compelling about Reagan’s slogans is that they show a need to go with Reagan. His competitors did not capture that. Carter’s slogan was A president, for a change, and Mondale’s slogan was America needs a change. (Sidenote: What’s with Democrats and change?) If you were voting for slogans alone, not knowing whom they’re for, I daresay most of us would’ve voted for Reagan’s.

Now to make a slogan for Obama. What does he value? Empathy, being caring, keeping calm and civil, being even and fair, repairing the mess.What do people value in a president? Competence, integrity, vision, accomplishment.

How about: Paving the way for people first. Maybe even just people first. The value is empathy. The world is one filled with opportunity. And it suggests the opponent prioritizes something else — corporations perhaps. (Note: Clinton used putting people first. It worked.)

Or how about:  Building us back up and better. Shorten to back up and better. The value is repair. The world is one where we can get out of the trouble we’re in. It doesn’t have a strong suggestion of what opponents are, but I suppose it looks like they are not interested in making us better.

Lastly, how about: Moving America forward. This value here is progress. The story is one of repair, change, improvement. It suggests the other side is going backward.

Well, I suspect Obama’s slogan will change once his opponent is identified. It’ll probably capitalize on whatever his opponent is (perceptibly) not: If it’s Cain, then the slogan could be about honesty, something like Live true or Being true to tomorrow. If Gingrich, then the slogan should be about progress. (Take any of the first three from above.) If it’s Perry, then the slogan should be about respect, civility, or sanity, something like steady and steadfast work. That could be used for Romney, too, with the issue being consistency.

Well, that’s my two cents. It might be fun later to come up with slogans for the Republicans, but I’ll wait till the GOP whittles down their candidates.

In  Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Cheryl Perich, a Lutheran Church fired a teacher who took an extended leave of absence due to disabling narcolepsy.  The teacher was a Christian with a “calling” who taught mostly secular classes. The Church argued that the government couldn’t interfere with the Church’s firing decision, as that would encroach on the Church’s religious freedom. Church immunity from federal employment law falls under the “ministerial exception.” The teacher and the EEOC argued that anti-discrimination laws don’t stop at the church door where the job in question is mostly secular.

This reminds me of the World Vision case I wrote about a little while ago. That’s the one where a nonprofit with a generally religious mission fired three employees in secular jobs because they didn’t subscribe to the nonprofit’s religious edicts required of their employees. The 9th Circuit reviewed the firings to see whether they came within the reach of the Civil Rights Act, and upheld the firings for reasons I disagreed with. I suggested that an equivalence test should be used when determining whether a job in a religious entity should be subject to the Civil Rights Act. That test is as follows:

If the job in question is substantially (maybe even entirely?) equivalent to a job in an unquestionably secular environment, like a commercial bank or government agency, or demolition company, or Taco Bell, then it’s secular. Voila! If you cannot find a secularly equivalent job, then it’s religious.

This sort of a test has already been summarily rejected by Chief Justice Roberts during oral arguments in Hosanna. He said that “different churches have different ideas about who’s a minister. There are some churches who think all of our adherents are ministers of our faith” and that the test should not deal with whether the employee has “important secular function.” He quipped, “[t]he pope is a head of state carrying out secular functions. Those are important. So he is not a minister?”

But I think Roberts missed the point; a variation of the equivalence test could be used here as well. First, Hosanna differs from World View in that the World View employees worked secular jobs and were fired based on religious discrimination. Hosanna deals with an arguably sectarian job where the employee was fired for secular reasons.  But I think the same sort of test applies to both cases.

To resolve Hosanna, I would propose a two-prong test, which simply extends the equivalence test. The first prong is whether the job is equivalent to a secular job. If it’s equivalent, then secular law applies. If it’s a sectarian job, then we go to prong two, which asks whether the act of discrimination was in keeping with some religious tenet. Here, let’s say the parochial teacher’s job is sectarian and move to prong two of the test: Is firing her due to her disability in keeping with a religious purpose? Last I checked the church never said that disability (or taking leave because of it) was an offense to its tenets. There was no religious reason for the firing. Instead, firing the disabled teacher was a convenient cost-saving measure, and the church should not be allowed to hide behind the “ministerial exception” in order to dodge federal law.

Resolving the case this way wouldn’t hinder a church’s freedom to exercise its religion, which is the concern voiced by Hosanna proponents. If the church happens to have a tenet that warrants discrimination based on age, sex, race, national original or whatever else the EEOC protects, then as nasty as I think that discrimination is, I do think the church should be allowed to discriminate accordingly when dealing with employees who work sectarian jobs.

As with World View, I’m perplexed why the equivalence test should not be adopted. If Hosanna is allowed to discriminate against sectarian employees for secular reasons, doesn’t that effectively put a fair chunk of employee law in the hands of the church and out of the hands of the federal government? It seems far more dangerous than a state court’s mere considerations of Sharia.