Thursday, February 13, 2014
Nuns fret not at their convent’s narrow room.
—William Wordsworth, Nuns Fret Not
Many readers have asked me to explain matters legal and, in this case, ecclesiastical. I respond to their requests with humility and an awareness that when it comes to matters ecclesiastical I am more of a critic than a teacher. Nonetheless, I am grateful for the confidence readers show in my good judgment in asking me to explain the legalities involving the “Little Sisters of the Poor Home for the Aged.”
When Congress was considering enacting the Affordable Care Act, many groups of nuns were enthusiastic supporters. Indeed, prior to the act’s adoption, fifty-four nuns who identified themselves as heads of major Catholic women’s religious orders in the United States sent a letter to Congress urging adoption of the Affordable Care Health Act. They said, “We have witnessed firsthand the impact of our national health care crisis, particularly its impact on women, children and people who are poor. . . .Congress must act.” The leader of the Little Sisters of the Poor was not among the signers of the letter.
The Little Sisters is a Denver based religiously affiliated, nonprofit charitable organization that operates nursing homes across the United States. In addition to its charitable work it has been engaging in litigating with the United States government over a matter that has no substance but has given it a high profile. Many nuns can say they’re in more or less constant contact with God, but few can say, as the Little Sisters can, that they’ve also been in contact with the U.S. Supreme Court and that that body granted their petition in a more tangible way than God usually does.
The litigation in which the formerly petulant Little Sisters are involved pertains to requirements to which they are subject under the Affordable Care Act (ACA.) Under the ACA, religious organizations that object to providing contraceptive coverage to employees must sign an EBSA Form 700-Certification. The representative of an organization who signs that form certifies that “on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; and the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.” The insurance company or administrator receiving the form then arranges for contraceptive coverage to be made available to female employees of the entity.
The nuns began the lawsuit because of instructions that the nuns’ lawyer, Mark Rienzi,said that the nuns had received from God. God, who is unfamiliar with legal niceties, instructed the nuns that they could not sign EBSA Form 700-Certification. That was because God thought if they signed, the company administering the nuns’ employee benefit plan would be required to furnish contraceptive coverage to the nuns’ employees. God did not realize that the Employee Retirement Income Security Act of 1974 (ERISA) says that no government regulation of an employee benefit plan run by a religious organization is permitted. The nuns’ plan is administered by the Christian Brothers. Under ERISA the Christian Brothers are not required to provide contraceptive coverage to employees who work for the nuns who, having taken vows of chastity, have no need of contraceptives anyway, and little sympathy for those who do. That exception did not, however, satisfy the petulant Little Sisters whose petulance was not overcome simply because they could get the result they claimed to want by signing the form. They went to the Supreme Court to obtain a waiver from the need to sign the form to avoid penalties that would otherwise be assessed against them for refusing to provide coverage to their employees. The Supreme Court temporarily blocked the enforcement of any penalties on the Petulant Little Sisters pending the outcome of a trial on the merits.
The no-longer petulant Little Sisters were thrilled. There were pictures of the contraceptive free Little Sisters cheering and raising their hands in gestures of gratitude to God (and the U.S. Supreme Court) for having heard their prayers and relieving them of the need to sign ESBA Form 700, Instead of signing that form and stating that they are a religious organization and object to “providing coverage for some or all of any contraceptive services” they must now, in a letter addressed to the secretary of health and human services, inform the secretary that “they are nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.” The non-lawyer will have difficulty understanding how what the Little Sisters tell the secretary differs from what the form says.
The injunction means that the nuns will not be forced to sign and deliver ESBA Form 700 to the Christian Brothers and the Christian Brothers will not have to ignore it. The nuns’ lawyer probably overlooked the fact that the clumsily worded instructions on the form have no applicability to the Christian Brothers because of ERISA. If God had been aware of ERISA, he might well have told the nuns to get on with His work and stay out of court. One can hardly fault Him for not fully understanding the language on ESBA Form 700. It is poorly thought out. So is the Supreme Court’s decision supporting the Little Sisters.
Wednesday, February 5, 2014
Trivial personalities decomposing in the eternity of print.
— Virginia Woolf, The Common Reader
Forget substance. It’s all about the trivial. The more significant the issue, the more significant the trivial becomes. It all comes to mind when one considers the issues in which the trivial has been introduced in order to deflect attention from the substantive. Consider Chris Christie and Wendy Davis.
One of the great comic operas of today is in New Jersey. The libretto is taken straight from the Nixon years-what did Chris Christie know and when did he know it. It pertains, of course, to the closure of lanes leading to the George Washington Bridge. The lanes were reportedly closed in retaliation for the failure of Mark Sokolich, the mayor of Fort Lee, New Jersey, to support Mr. Christie’s bid for a second term as governor of New Jersey. The instructions to close the lanes were sent to David Wildstein at the Port Authority, by Mr. Christie’s former aid, Bridget Anne Kelly. Mr. Christie, denied knowledge of the instructions to close the lanes. In initial reports it was stated that the man who ordered the closures was one of Mr. Christie’s friends in high school but Mr. Christie promptly denied that. He acknowledged having been in high school at the same time as David but said: “David and I were not friends in high school. We were not even acquaintances in high school “ Lest anyone misunderstood that, the Governor also said: “You know, I was the class president and athlete. I don’t know what David was doing during that period of time.” A little research helped him remember a bit more about David. In late January the governor’s office sent out a two-page memorandum that sought to discredit David. Among other things, it alleged that while in high school David brought suit over a school board election, and had also been “publicly accused by his high school social studies teacher of deceptive behavior. These remembrances of things past are are trivial but, the governor hopes, will serve to cast doubt on David’s credibility.
The governor’s attacks on David were partly in response to the peculiarly unlawyer like letter sent to the press by David’s lawyer. In the letter the lawyer said there was evidence the governor was complicit in the lane closures. He forgot to say what the evidence was.Meanwhile, in Texas the trivial has overshadowed the race to see who will replace Governor Rick Perry. That race, it will be recalled, is between Greg Abbott, a Republican and Wendy Davis, a member of the Texas legislature and a Democrat. (Although each of them faces a primary each of them is certain to win.) Wendy became famous when she conducted an 11 hour filibuster to block the Texas legislature’s attempt to further restrict abortions in that state.
Mr. Abbott has served for 5 years as the Texas Attorney General. During his tenure he has sued President Obama 27 times. In campaign speeches he often says his routine is that he goes into the office, “I sue Barack Obama, and then I go home.” He has sued the EPA 17 times in opposition to air quality standards and greenhouse gas emissions. He doesn’t think carbon dioxide is a pollutant since it is emitted by humans. (He has expressed no opinion on flatulence.) He has sued the Department of Health and Human Services four times and the Justice Department twice. Himself a paraplegic, he has argued in court against the requirement that cities be required to provide wheelchair access to buildings on the grounds that the Americans With Disabilities Act is unconstitutional. Those are just a few of the suits he has brought against the government.
Wendy Davis will probably not be elected as Texas’s next governor. Since she is running in Texas she probably wouldn’t be elected irrespective of what was disclosed last month. The disclosures, however, further dim her chances. They do not concern anything that pertains to the welfare of the citizens of that state. They do not pertain to what she might do as governor, questions that would seem important in electing a governor. They pertain to trivial misrepresentations made by her about events in her life that took place many years ago. They pertain to her description of her life as a young mother, descriptions that generated sympathy for the difficulties she encountered in getting to where she is now. Many of those events we have learned, were exaggerated or untrue. They are also irrelevant. She was not divorced when she was 19. She was separated at age 19 and divorced when she was 21. She said she lived in a mobile home following her divorce but it turns out that was only for a few months. She said she financed her own undergraduate education with grants, loans and scholarships and then went on to Harvard Law School. She didn’t disclose that her husband paid her tuition at Harvard. She will not be elected because Texans wouldn’t want to have a governor who lied about how long she lived in a trailer or how old she was when she got divorced even though non-Texans view those things as trivial. They’d rather have a governor who is wrong on all issues of substance but has not misrepresented his background. As New Jersey already has, Texas will end up getting exactly the kind of a governor it deserves.
Thursday, January 30, 2014
He that’s secure is not safe.
— Benjamin Franklin, Poor Richard’s Almanac
In the face of the most recent revelations about the relationship of the NSA to many of our smartphone apps that neither we nor the apps knew we had, it was nice to learn that there is a whimsical side to the NSA. It is known as CryptoKids® and is staffed, in part, by amusing cartoon characters with cute names such as CryptoCat®, and Decipher Dog®. It describes itself as being for “Future Codemakers & Codebreakers.” (Every name on the site seems to be a registered trademark since the NSA doesn’t want anyone stealing its good ideas.) Although CryptoKids®has been in existence for more than nine years, its existence was recently brought to our attention (thanks to a story in the New York Times,) at about the same time we learned that those using apps to play games on their smartphones are providing useful information to the NSA. According to news reports inspired by Edward Snowden, when someone with a smartphone plays games on the smartphone, the NSA joins in the fun. It uses the information gleaned from the phone to figure out where the player is, the player’s age and sex and other sorts of information that the game participant had no idea he or she was disclosing. The player thought by playing games on a smartphone, he or she was killing time-not disclosing facts. We now know that while the user of the smartphone is playing Angry Birds the NSA is playing Hid’n Go Seek.
CryptoKids® gives us the soft fuzzy side of the NSA. The site has different sections. The section called “Cryptomania®” encourages students to “Dig into Greek and Latin Roots” of words and expressions and explains the origin of many words and phrases that adults would find interesting as well. It contains features that can be used in classrooms by teachers who have no interest in teaching their students to become spies. If used, however, they will almost certainly develop in certain students a fondness for language. And that is probably why in the section of the site that deals with “Codes and Ciphers,” the site explains that codes “are used to make messages secret by changing the words into something else.” (Older readers can relate to the allure of code breaking for the young since in their youth many cereal boxes found in stores advised the purchaser that included in the box was a magic ring that could be used to break enemy code. Children, if not their mothers, found this irresistible and many boxes of cereals were sold for the rings rather than the cereal. )
In a section of the site entitled “What are Codes?” the reader is told that to understand coded messages a key must be shared by the users. It explains: “If your friends have the key, and your enemies do not, your messages become secret.” The very young may not be sure who their enemies are but by the time they get to junior high or high school they will have figured that out and the ability to code will be very helpful. It will be most helpful if a student wishes to pass a message to a friend in class and does not want the teacher-enemy to know what the message says.
The CryptoKids® page entitled “About NSA/CSS” contains useful information about the agencies. The page tells the reader that NSA and CSS “provide the technology . . . and the information. . . our Nation’s leaders and warfighters need to get their jobs done. Without NSA/CSS, they wouldn’t be able to talk to one another without the bad guys listening and they wouldn’t be able to figure out what the bad guys were planning. . . . .”
There is a great deal more to the site than a short piece such as this can hope to describe. Some will think it too bad that we had to learn of this from the New York Times instead of from Edward Snowden and will attribute his failure to disclose the existence of CryptoKids® to an unwillingness to show that the NSA does some good things. That is unfair to Mr. Snowden. He did not think knowledge of the existence of this site would cause those who became critics of the NSA because of his disclosures to change their opinions of the agency because of CryptoKids®.
In concluding its description of the activities of the NSA/CSS the site says: “Cryptology gives the United States an advantage over its enemies,” suggesting that the United States is the only country in the world that uses cryptology. That would probably surprise President Putin. He would probably be even more surprised to learn of the existence of CryptoKids®. My guess is Russia’s intelligence apparatus does not have a kid-friendly site. Mr. Putin may now create one, if only to demonstrate that appearances to the contrary notwithstanding, he’s every bit as warm and fuzzy as the NSA. He may be right.