Category: reason

Last month, the Supreme Court denied cert in Patterson v. Walgreen. The petitioner in that case called on the Court to reconsider TWA v. Hardison (1977). Justice Alito dissented from the denial of cert, joined by Justices Thomas and Gorusch. He wrote:

I agree with the most important point made in that brief,namely, that we should reconsider the proposition, endorsed by the opinion in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 84 (1977), that Title VII does not require an employer to make any accommodation for an employee’s practice of religion if doing so would impose more than a de minimis burden. . . .

As the Solicitor General observes, Hardison’s reading does not represent the most likely interpretation of the statutory term “undue hardship”; the parties’ briefs in Hardison did not focus on the meaning of that term; no party in that case advanced the de minimis position; and the Courtdid not explain the basis for this interpretation. See Brief for United States as Amicus Curiae 19–21. I thus agreewith the Solicitor General that we should grant review inan appropriate case to consider whether Hardison’s interpretation should be overruled.*

Yesterday, the Sixth Circuit decided Small v. Memphis Light, Gas, and Water. The per curiam opinion followed Hardison. But Judge Thapar, joined by Judge Kethledge, wrote a concurrence that called on the Court to reconsider Hardison. Judge Thapar sketches how Hardison made up the “de minimis” test. He also rejects any implicit argument that Hardison‘s holding was needed to avoid an Establishment Clause violation. Here is his argument, which relies on scholarship from Professors Michael McConnell and Mark Storslee:

As for the implicit reason—acknowledged only by the Hardison dissent—the majority may have construed Title VII so narrowly because it feared that a broader reading might run afoul of the Establishment Clause. See Hardison, 432 U.S. at 89–90 (Marshall, J., dissenting). Yet whatever doctrinal merit that concern once may have had, I seriously doubt that it remains valid. Even properly read, Title VII doesn’t require employers to provide any and all accommodations; it requires them to provide only those accommodations that won’t impose an “undue hardship” on the company—meaning significant costs. That seems more than fine under the Establishment Clause. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 722–24 (2005); Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 711–12 (1985) (O’Connor, J., concurring); Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 Geo. Wash. L. Rev. 685, 704 (1992); see generally Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871 (2019) (challenging the theory that religious accommodations violate the Establishment Clause whenever they impose more than de minimis costs).

In any event, the doctrine of constitutional avoidance doesn’t give courts license to rewrite a statute. See, e.g., Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018). But the Hardison majority appears to have done exactly that. The only other explanation is that the majority stumbled through the looking glass and into “an Alice-in-Wonderland world where words have no meaning[.]” Welsh v. United States, 398 U.S. 333, 354 (1970) (Harlan, J., concurring in the judgment).

Of course, all this does not mean that employers must always accommodate their employees’ religious beliefs and practices. The term “undue hardship” makes clear “that this is a field of degrees, not a matter for extremes” or “absolutes.” E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 313 (4th Cir. 2008); cf. Barnett, 535 U.S. at 402. But Hardison itself adopted an “absolute” when it “effectively nullifi[ed]” the accommodation requirement. Hardison, 432 U.S. at 89 (Marshall, J., dissenting). And without any real reason.

The irony (and tragedy) of decisions like Hardison is that they most often harm religious minorities—people who seek to worship their own God, in their own way, and on their own time. See McConnell, supra, at 693, 721–22; Storslee, supra, at 873–74, 877. The American story is one of religious pluralism. The Founders wrote that story into our Constitution in its very first amendment. And almost two-hundred years later, a new generation of leaders sought to continue that legacy in Title VII. But the Supreme Court soon thwarted their best efforts. Even at the time, this “ultimate tragedy” was clear. Hardison, 432 U.S. at 97 (Marshall, J., dissenting) (“[O]ne of this Nation’s pillars of strength our hospitality to religious diversity has been seriously eroded.”).

This argument may soon garner four votes for cert, and give votes for reversal of Hardison.

 

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When I needed new glasses, I went to an optometrist for an exam, picked out some dorky black frames, paid my portion and my insurance picked up the rest. Then, by chance, I walked into one of those ubiquitous Walmart optometry centers and realized I could have had the exam and the glasses for little more than the price of the copay. That speaks volumes about our current health system.

When a third party—insurance or government, for instance—pays for something, the prices escalate. What’s the first thing an auto body shop asks when you take in your car to repair the fender? “Is this an insurance job?” If it is, the price will be higher than if you’re paying for it yourself. I never asked the price of my appendix surgery last year, nor did I care. Blue Cross paid the tab.

It’s far worse when government is the default payer, given there are no serious controls on costs. There only are two ways to divvy up resources: pricing or rationing. As economist Thomas Sowell explains, “What everyone wants adds up to more than there is. Market economies deal with this problem by confronting individuals with the costs of producing what they want, and letting those individuals make their own trade-offs.”

Healthcare is tough because everyone needs access to life-saving surgeries and drugs. Unfortunately, our policymakers look at the problem through the wrong lens. Many seek to upend an insurance-based system that works remarkably well (despite the high prices) and replace it with government-run systems that will spend the nation into penury and lead to long waits for common services (rationing).

Instead of starting from scratch, policymakers ought to fill in the gaps—meet the needs of those people who are falling through the cracks of the current system. One idea goes back to that example in the first paragraph. No one will ever head to Walmart for a kidney transplant, but retail companies and profit-based clinics certainly can offer high-quality, lower-level services—and impose market discipline in a sector that sorely needs it.

Walmart announced last year that it intends to provide clinics that offer low-cost X-rays, lab work, checkups and dentistry, according to a recent CNBC article. “We’re going to have a consumer revolution,” former Apple CEO John Sculley told the news network. “Why? Because if the Walmart tests are successful, and I suspect they will be, people will be able to go in and get these kinds of health services at a lower cost than if they had health insurance.”

One of the biggest flaws of Obamacare is that it imposed myriad healthcare mandates, requiring health policies to cover every manner of treatment and service that politicians deemed necessary. For instance, it’s silly for an insurance company to be forced to provide my wife and me, who are in our late 50s, with birth-control coverage.

In other areas, we choose insurance based on our specific needs. I use insurance to protect against financially catastrophic events, not to cover minor services that I can pay for myself. Other people have different needs and priorities.

Scully explained that the big tech firms “realize that this is the largest remaining industry that has not been revolutionized by modern technologies that has transformed every other big industry in the United States.” That’s because health care, and health insurance, is dominated by government regulation and subsidy. Private companies can’t revolutionize industries that are encrusted with Byzantine rules—and where price signals can’t work their magic.

In particular, occupational licensing rules, which are enforced by entrenched industries that want to keep out the competition, make it difficult to innovate. That’s true, especially in healthcare industries. One reason the gig economy has been so successful is these emergent companies have created newfangled ways to circumvent competition-stifling policies that lock inefficient systems into place. Thank goodness for clever work-arounds.

If you look at prices over time, you’ll find that consumer buying power has improved dramatically in industries that have the fewest government regulations. I remember when my parents bought our first color television in 1973 for $470. I still recall the price because it was such a major purchase, the equivalent of around $2,700 in today’s dollars. I recently bought a fancy smart TV for 300 bucks—and chose among dozens of options.

When products or services largely are immune to market pressure (because government provides, subsidizes or heavily regulates them), inflation levels are daunting. California public schools never have enough money even though per-pupil spending has soared. That’s true for every public service. College tuition has soared. A day doesn’t go by without some politician complaining about skyrocketing healthcare prices. Don’t you think there’s a connection?

Sculley predicts Walmart-style health clinics can lead to a “consumer revolution.” That’s no doubt true—provided government gets out of the way and allows it to happen.

This column was first published in the Orange County Register.

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The Hunt is a movie you want to love. It’s billed as a hyper-violent anti-PC satire that takes aim at both factions of our current political mess, the “Elites” and the “Deplorables.” (Those are the movie’s terms—progressives and right-wingers, basically.) It’s a Blumhouse production, with Damon Lindelof weighing in on the script, so…well, it sounded pretty good to me.

The picture was supposed to have been released last August. But then, that very month, within the space of 11 days, a pair of armed losers shot down and killed a total of 31 people in Dayton, Ohio, and El Paso, Texas. Suddenly, putting out a movie in which snotty liberals hunt down and kill their lower-class inferiors seemed unwise. So Universal pulled it.

But the trailer was already out there, and it stirred up a lot of anger among people who, of course, hadn’t seen the movie. Some recent grumblings from Twitter:

“That vile movie about hunting ‘Deplorables.'”

“Tasteless and disgusting and every time I see an ad for it…it makes my blood boil.”

“A movie about killing Trump supporters. This has to stop.”

And now here it is, all 89 minutes of it, and everybody should really settle down. The picture is sometimes funny, but it’s no way as witty as it needed to be. And the determination to mock both sides of the political divide equally (“We gonna be on Hannity!” “Climate change is real!”) flattens the effect. How much more entertaining it might have been if the filmmakers had picked one side and stayed on it, lobbing out bombs with no concern for “fairness.” The way it’s turned out, the most enjoyable thing about the movie is the wild blood-and-gutsy violence, quite a bit of which is pretty excellent.

The picture begins in a private airplane, with a group of insufferable Elites on their way to the launch of the annual Hunt. Things get good right away with the jamming of a long stiletto heel into a man’s eyeball. Then we cut to a field in which about a dozen Deplorables are regaining consciousness after having been drugged and kidnapped from various parts of the country. No sooner do these folks discover a crate full of weapons nearby than all hell breaks loose—gunfire erupts, heads explode, arrows rain down. (“What is this Avatar shit,” one startled Deplorable wonders.)

Several of these people manage to escape over a barbed-wire fence, and soon we meet the movie’s star, Betty Gilpin (GLOW), who plays a tall blonde abductee named Crystal. Crystal is from Mississippi and has done a tour of duty in Afghanistan and is thus well-versed in the butt-kicking arts. These come in very handy when she walks into a country store and finds herself compelled to tear the place apart in a pretty memorable way. (Gilpin gets a number of showpiece scenes, all of them fiercely lively; it’s too bad she’s been instructed by director Craig Zobell to maintain a single dull sourpuss expression on her face throughout the movie.)

You may be wondering what this picture is actually about. I sort of still am, to be honest. There’s talk of a dark Internet rumor—the one that launched the Hunt—and there’s an Elite ringleader named Athena (Hilary Swank, seriously slumming), and, let’s see, there’s a piglet, too (on hand to provide an Orwell reference). There’s also a furious woman-on-woman smackdown at the end of the movie that would be so much better if it didn’t go on for so, so long. And then the picture ends, leaving you to wonder what all the months of preliminary hype and hustle were about. A very old b-movie lesson, re-learned once again.

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3/13/1963: Ernesto Miranda arrested.

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“You have to make this work! It’s only legal if it works!” yells a CIA functionary overseeing the torture of prisoners in overseas black sites. It seems unlikely that an actual CIA leader would yell something so on-the-nose, but this is The Report, Amazon Prime’s attempt to dramatize not just the “enhanced interrogations” that took place under President George W. Bush but the concealment of these tactics by the CIA (from Congress and Bush himself), the fight by the Senate Intelligence Committee to investigate what happened, and ultimately the Obama administration’s failure to hold anybody to account.

The name of the movie is actually The Torture Report, but the word torture is cleverly redacted. The torture is not redacted from the film, though; it’s re-enacted in vivid flashbacks. The protagonist—Senate investigator Daniel Jones, portrayed by Adam Driver—attempts to determine what happened at these CIA sites, why, and what laws might have been broken.

That’s just half the movie. The other half is the intense struggle to get any of the information into the hands of the public. We see how the CIA attempted to block the report’s release and even engaged in illegal surveillance against Senate staff, then accused the staffers of hacking into the computer system of America’s spy agency.

The Report ends on the dour real-world reminder that there’s been no real punishment of the people involved in the decision to torture detainees—or even for the CIA staff who illegally snooped on Jones’ work.

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“Reasons to quit: The low is always lower than the high,” sings Texas stoner royalty Willie Nelson. Alcoholics know that firsthand. Others, too, are discontent with paying for the lows via hangovers and liver problems. Enter Sans Bar, a sober establishment in Austin started by former substance abuse counselor Chris Marshall.

Sans Bar feels like a calm, diverse house party (“I started my three-month intensive fast on the solstice!” said one health-nut patron while I was there). Serving good nonalcoholic cocktails and using a “pay what you want” model, all it asks is that patrons not be under the influence while there (which, given the Alcoholics Anonymous logo in the window, shouldn’t surprise gallivanters).

For Nelson, “The reasons to quit don’t outnumber all the reasons” to drink. Others feel differently, so bless the market for providing alternatives for sober revelers—spaces deliberately crafted to eliminate temptation.

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