Tag: law

What does this mean?

There’s a whole lot of confusion surrounding the Affordable Care Act (aka Obamacare, for which a reader of the secret LCMS Life Ministries Facebook page took me down for quoting a news article that referred to the ACA as such, calling Life Ministries political and derisive…but that’s another story, and this is my blog, so I can call it what I want).

Part of me dislikes how political it’s all gotten. People just hate it because they hate Obama, and they’ve forgotten how to think, or even do their own reading. Even Congress had trouble slogging through the 1,245,838,305 pages that comprised the ACA. Here’s my opinion in a nutshell.

Things I like about the law:

1. It provides a whole lot of goodies for self-employed people like me, such as not banning people with pre-existing conditions from getting insurance, preventing insurance companies from dropping people who come down with an illness (the whole reason they pay for insurance, but that’s another rant), and not capping maximum payouts. You honestly cannot understand how important this particular reform is until you literally work for the sole purpose of providing your family with health insurance (and still pay out the nose for almost no coverage whatsoever, with preexisting conditions excluded and the threat of being dropped at any moment hanging over you); until you get cancer, get dropped, wipe out your retirement savings, kids’ college savings, and finally lose your house trying to pay for your medical care; until you are the guy dreaming of running his own business but, because you have a heart condition you’re doomed to forever be a corporate drone; until you can’t get coverage for your kid who has diabetes and needs insulin.

2. I think that’s about all I like. But the one reform I like could happen a number of different ways.

Things I don’t like about the law:

1. It puts the inefficient, overspending, bureaucracy-laden government in charge of healthcare. Because that always works.

2. It’s complicated, but basically the federal government will provide subsidies for certain families of certain incomes to help pay for their insurance. These families may have insurance that provides abortion as part of their plans. Therefore, our tax money is indirectly going to fund abortions, Hyde Amendment or no.

3. If the multiple lawsuits against Health and Human Services don’t prevail, the mandate that companies must provide health insurance for their employees with certain provisions regarding birth control and abortaficients completely go against the First Amendment. Actually, it’s hard to see how these lawsuits wouldn’t prevail, given the Supreme Court smacked down the LCMS teacher who wanted her former school to have to follow federal employment laws, and 9-0 the Court said, “We aren’t getting into this religious thing.”

Issues, Etc. had a great trio of interviews Friday that explain the impact of the Affordable Care Act, the HHS mandate, and how these affect our religious freedom and conscience rights. Todd Wilken claims to not be a journalist, but he asks all the right questions so the answers make sense. If you want to know more, start here. Go to the interviews featuring Ed Meese, former U.S. Attorney General, Eric Rassbach of the Becket Fund for Religious Liberty, and Carol Tobias of National Right to Life.

And, as a whiny little aside, this is why I want to go to law school. So I can work for an organization like The Beckett Fund and write amicus briefs that lay out why the federal government is idiotically and shortsightedly trying to trample on religious liberty and conscience rights. Somehow I seemed to have missed my own boat. I asked Derek last night, “Why didn’t I figure all of this out when I was 22 and I had the time and mobility and was too stupid to understand the real price of student loans?” Now I have three kids and listen to Dave Ramsey and can’t make myself take out $60,000 in student loans in a job market where only one third–one third!–of law school graduates are getting legal jobs.

So I’ll try to reconcile myself to armchair analysis. Someone on Facebook posted, after the ACA decision came out Thursday, something like, “And now I’ll sit back and watch all my friends become constitutional scholars.” Amen.

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June 30th, 2012
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Books, sweet books

The other night I dreamed that we walked into the new house, and they’d painted every single room beige. I was distraught, crying “Why? We were going to buy it anyway!”

Today I started packing my books. Besides china and extra blankets, they’re the easiest to box up first, yet paradoxically the very items I’m most anxious to have put away afterwards so I can feel truly at home. I’ll never forget having to leave almost all my books behind on vicarage, taking only my “how to raise a baby” type books for my first year with an infant. When Pastor Crown came in to see us for the first time, he announced that he always looks over a family’s bookshelves to get a sense of who they are. I was horrified, but too scared to scream, “This isn’t meeeeeee!”

The books are a decent historical record of all the silly and not-so-silly phases I’ve gone through over the years. One box is full of simple living books like Your Money or Your Life and In Praise of Slowness. A few more hold my ginormous wine tomes, although I finally passed my sommelier flashcards to a friend. There’s a box with my childhood favorites–the Laura Ingalls Wilder series, the Anne of Green Gables series, the Narnia series, and some Madeline L’Engle volumes. All of the books I studied for English lit classes in college, including the odd postmodern Irish literature collection. My Lutheran books, which multiply quarterly now that I’m on the CPH board and get boxes of all the new products. The stacks of law school books and writing books, including one creative book called The Artist’s Way that I almost dumped but then thought better of, because maybe I need a humbling reminder that I once thought some woo-woo “letting go of my childhood and all the people who are holding back my creativity” workbook would make me a bestselling novelist. (To be fair, a lot of my writer friends love Julia Cameron’s books. I am not one of them.)

Lookin' pretty bare in there.

A few of my books are actually my parents’, borrowed from their shelves in college and never returned. (Shhh!) And the rest are my favorite works of fiction, everything from my complete Oscar Wilde collection to Edith Wharton, Chaim Potok and Ernest Hemingway to Anthony Trollope and Henry James.

Is it too soon to already miss them?

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March 27th, 2012
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Personhood

I’ve got about ten minutes between all-day back-to-back interviews, which is not nearly enough time to think through and articulate the complexities involved in the rising tide of the personhood initiative, but…. Mississippi voters decided not to approve the Personhood amendment on the ballot yesterday. My personal opinion is that most voters probably believe in inherent human rights (after all, we are all given the natural law upon our hearts) but were swayed by hysterical Planned Parenthood propaganda that convinced people that the initiative will take away human rights, not bestow them.

So. This is disappointing. I’m still working through stacks of books, journal articles, and international views on this subject (and was lucky to get a bunch of source material written by John Gorby, a law professor and constitutional scholar who kindly sent me many of his writings from the 1970s along with a nice note of encouragement). My premature opinion, before finishing and analyzing all the issues in my own mind, is that personhood is a basic human right and should be recognized nationally and globally, and yet trying to do so may throw pro-life legal strategy back several steps.

Some people argue that doesn’t matter, that we can’t compromise and take incremental steps any longer; we’ve been doing that for nearly forty years and abortion is still legal and, worse, a generation of women have grown up being told that they have a Constitutional right to privacy and that it’s not really a baby yet.

Others argue that changes are being made. Restrict access to abortions, and the number of abortions fall. But the root of why people chose abortions and why people don’t respect all human life at all ages and stages is that they draw a distinction between a human and a person. I first learned of this concept from Dr. Gilbert Meilaender, a theology and ethics professor at Valpraiso University and a former member of the President’s Council on Bioethics.

Here’s what he said about the difference between a person and a human in the interview I did with him:

People have developed theories of personhood that require the presence of one capacity or another in order to qualify. Some people say, for instance, the ability to feel pain makes you a person. Others say at least minimal cognitive powers of some sort, the ability for self-consciousness or self-awareness or to envision oneself having a future. Lacking such capacity, one is not a person. One may still be a human. The problem is that it’s not clear if a one-day-old newborn has some of these capacities—to envision oneself as having a future, for instance. Along with this view is that only persons have rights. You have rights when you have interests and capacities, so persons get more rights than humans who fall outside of the narrower class of “person.”My own view is that in Christian terms, if you have a living human being, you have got a person.  That is to say we should not distinguish these two classes, making one narrower than the other.

As a layperson, I still can’t get over the fact that many states have criminal and civil laws that protect an unborn baby if it’s harmed or killed in a violent situation (such as The Unborn Victims of Violence Act), yet an exception is made for abortions. The failure in logic is astounding. It’s a baby if you want it, and not if you don’t.

Most people who promote personhood believe that abortion is just the latest in human rights violations that take place every generation. Slavery. The Holocaust. Blacks and women. Throughout history, the sinful nature of human beings causes them to put classes of people above others. But as long as the issue is spun as for or against women, for or against women’s health and privacy instead of a fight for precious human lives, measures like the Mississippi Personhood amendment will be voted down.

But we can still fight the good fight, knowing that it is God who gives life and considers it precious.

Before I formed you in the womb I knew you, and before you were born I consecrated you.

Jeremiah 1:5

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November 9th, 2011
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Happy Happy Joy Joy

This is me, doing the Happy Happy Joy Joy dance. I just landed a major client. Major, as in the first contract will be 1/3 of my income this year. Major, as in they love me and want me to do much more beyond this first contract. Major, as in the client also happens to be a law firm, so I will have a nice little addition to my resume (somehow, home and garden article-writing experience doesn’t translate. Can you believe it?).

I’m also relieved, because work has only been slowly steady lately, and I am happiest when I have a big full plate. Kind of like at dinnertime.

Update: Right after I posted, I read this. A magazine sale often means a new staff, which means the end of a long-term writing relationship. Much as I complain! about! all! the! exclamation! marks! in that magazine, they have been a good client. This project came at just the right time.

 

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October 12th, 2011
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What is a minister?

I’ve been closely following the case Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC for some time now. Last spring it looked as if the Supreme Court would review it, and they did. Oral argument in the case was October 5.

The case is both simple and complicated, and of intense interest not only to the LCMS, but to religious organizations all over the U.S., big and small. Essentially, there was a teacher, Cheryl Perich, who taught at Hosanna-Tabor Lutheran School in Michigan. She took a medical leave of absence because of an illness. Meanwhile, the school retained a permanent substitute for the remainder of the year. Perich asked to come back and was told no; they didn’t want to disrupt the kids yet again in that classroom. She assumed it was because of her illness and threatened to sue under the American Disabilities Act. The school then fired her (rescinded her Call) because of insubordination. Here’s a good summary of the facts.

The LCMS has a dispute resolution process through which all called workers are required to go through rather than the courts (1 Cor. 6:1-8). Perich did not do so. She was subsequently fired.

Because neither side disputes those facts at this point, the case before the Supreme Court hinges on the case-specific question of whether Perich is a minister, subject to the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions.

In plain English, is Perich a minister? If she is found by the Court to be a minister, then Hosanna-Tabor is allowed to let her go according to the tenets of the LCMS (see the LCMS brief, page 14 for the instances in which a minister can be fired). If she is not, then she is entitled to take her case to the courts. But the repercussions are much broader. There are a number of legal issues and theological issues.

Legal issues

The Establishment Clause and the Free Exercise Clause of the First Amendment provide a wall of separation between church and state. If the court decides Perich isn’t a minister, they’re essentially encroaching upon the freedom of religion. A bunch of religious organizations agree; a huge list filed amicus briefs in the case, because they want the U.S. to stay the heck out of religious affairs of any stripe. Even the justices, during oral argument, posed a number of hypotheticals asking the same question: if the government interferes here, what about here? And here? Where do we draw the line? It’s a slippery slope.

Perich argues she had the right to threaten to sue the school because she is not a minister, because she didn’t spend the majority of her time teaching religious subjects; she also taught math, science, English, etc. as the majority of her duties in the school. If the Court agrees with her interpretation, then religious schools wouldn’t be able to use the ministerial exception in employment issues. (Interestingly, no one brought up the tax designation of minister. I would have wanted to know: did she take advantage of the housing allowance? Then she’s a minister? Case closed?)

(Also interesting: no one ever got to the bottom of whether Perich knew she was a “minister” when she was hired/called by the school. The answer of course would have to be “yes.” She colloquized in order to be called and commissioned rather than contracted. If she didn’t understand what that entailed, is ignorance of LCMS policy an excuse for breaking it?)

The lawyer for the government essentially argues that there should be no ministerial exception at all, which means that in the future, courts, not the church, would adjudicate churchly employment issues. Getting out my crystal ball, I’m going to predict that the Court won’t agree with this precedent-breaking position. See slippery slope, above.

LCMS issues

What is a minister, theologically speaking? Are teachers “ministers” in the same sense as ordained pastors? We have designated them as such, as “auxiliaries” to the pastoral office, based on Acts 6:1-6. I’ve read that historically, this designation was formed both so LCMS teachers could avoid the draft and could qualify for the ministerial housing allowance. Has the LCMS compromised its doctrine for a civil and tax advantage for its workers?

In the case, the LCMS amicus (“friend of the court”) brief, filed as a supporting document to Hosanna-Tabor, liberally quotes a  LCMS CTCR document on the Divine Call. The problem: the CTCR doc is talking about the pastoral call. The one that goes with ordination. The issue is totally confused when you throw teachers into the mix…especially female teachers. It’s never clear in the briefs or the oral argument (because they don’t want this to become an issue for the sake of the legal argument) that the LCMS does not ordain women.

The lawyer for Hosanna-Tabor essentially argued that Perich is a minister and that, more broadly, any teacher who teaches religion, regardless of whether the teacher is called or commissioned or how much time that person spends teaching religion during the day, is a minister.

Which opens up a whole ‘nother ball of wax. In that scenario, our preschool teachers, who were not Concordia-trained, who are not called, and who are not on the roster of the LCMS, but who teach our preschool kids about Jesus, are “ministers.” In that scenario, if a Lutheran school hires a Methodist teacher for the first grade, and the teacher has a 45-minute religion class every morning, that teacher is a “minister.”

Do they therefore get the housing allowance? (The government wouldn’t like that.) Are they called? Rostered? (The LCMS wouldn’t agree with that; they aren’t Concordia-trained.)

In my mind, the LCMS has backed itself into a corner by creating the “minister” designation for teachers in the first place. Now that they’ve done it, they have to argue that teachers-as-ministers are subject to the ministerial exception, but then they spread the net of who is a minister too wide–both for the government’s liking and for our theology.

You know what the biggest irony is in this case? The Supreme Court has to decide whether or not Perich is a minister. That’s the question at hand. If they decide she is a minister, they are involving themselves in religion. If they decide she is not a minister, they are involving themselves in religion. As Justice Breyer said,

This is tough and I’m stuck on this.

The decision will likely not appear for months yet. Meanwhile, because anyone who has actually read this far might be interested in more….

  • Issues Etc. interview about the case with Dr. John Warwick Montgomery
  • Commentary from the always-brilliant Mollie Ziegler Hemingway at GetReligion.org
  • Commentary on Gottesdienst that highlights some of the oral arguments in which the issue of “what is a minister?” is completely confused and confusing
  • A recap of the arguments from SCOTUSblog
  • The report from the LCMS Reporter

Update 10/7: In thinking more about the idea of teachers-as-ministers, it seems they’ve got to fall under that category, at least from a legal standpoint. Otherwise, if a school let a teacher go because of false doctrine but the teacher claimed it was for another, illegal, reason, the courts would have to adjudicate between them, which tears down the wall of separation between church and state. From a theological standpoint, the idea of teachers as auxiliaries to the pastoral office is also good, but again, it doesn’t account for all the non-commissioned teachers who teach religion to students but who are not “ministers” either theologically or for tax purposes.

 

 

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October 6th, 2011
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