Thursday, December 29, 2011

Church v. State: Relgious Beliefs v. Government Contracts

Yesterday, the New York Times published this interesting article regarding Catholic Charities being closed due to their unwillingness to consider same sex couples as potential foster care and adoptive parents. In order to receive government funding, the state is requiring that such couples be considered. According to the article, this is not the only ongoing battle between the church and state regarding their charities.

Catholic Charities are also fighting the requirement that “religiously affiliated hospitals, universities and charity groups cover contraception in their employees’ health plans.” Additionally, Catholic bishops are asking that their denial of a federal contract to provide aid to victims of sex trafficking be overturned; this program was denied based on the fact that the proposal did not provide referrals for abortion doctors or contraceptives for the survivors of sex trafficking.

Church officials claim that the adoption requirements are an “escalating campaign by the government to trample on their religious freedom while expanding the rights of gay people.” At the same time, same sex couples are being discriminated against by organizations their tax dollars support. The Church also acknowledges that they do not have a First Amendment right to government contracts, but they also feel that they have “a First Amendment right not to be excluded from a contract based on its religious beliefs.”

This issue is a difficult one, and can be easily argued from either side. To start with the government’s side, it seems fair and logical that their provision of federal funds to any organization can be conditioned upon meeting certain requirements. As in other non-religious cases, failure to meet these standards means the organization receives no or limited funds. Especially if those standards are applied to both non-religious and religious organizations, it is difficult to claim discrimination.

As for the Church, each of their battles brings up unique issues, some of which are easier to defend than others. To begin with, their choice to not provide medical coverage to employees working in "Catholic and other religiously affiliated hospitals, universities and charity groups" regarding contraception seems to be an interference with their employment policies. Most employers are given the option of what type of medical coverage they provide for their employees. However, the fact that these employees work for an organization funded by government grants does muddy up the issue.

Regarding the aid to victims of sex trafficking, the Church is providing a valuable service to these people. The issue regarding requiring referrals for abortions and/or contraceptives become s more convoluted however since the Church is asking for federal aid. On one hand, it seems that the government should support these programs, with or without the questionable referrals; on the other hand, as stated above, it is not unfair or unusual for the government to require certain conditions prior to granting aid. While the Church may feel that they have “a First Amendment right not to be excluded from a contract based on its religious beliefs”, if the government is requiring this condition of all organizations seeking to aid sex trafficking victims, then any claim of discrimination seems less likely.

Finally, the issue of the same sex adoption appears to be least difficult of these issues: the government is requiring Catholic Charities to consider same sex couples as foster/adoptive parents; Catholic Charities has decided they do not wish to consider these candidates; and, as a result, many of the Catholic Charities falling under this requirement are being closed. It appears in this instance that Catholic Charities realizes that their work in this area is taxpayer driven and as a result must adhere to government requirements. The government has given them the option to accept funds and consider same sex couples as potential parents, or go it alone; in this instance, the Catholic Charities appear to be resolved that they do not want to follow the government regulations and cannot carry on alone. While the government may not have expected this result, the government cannot require Catholic Charities to remain operational.

Thursday, December 15, 2011

The 2012 National Defense Authorization Act

Yesterday, it was reported that President Obama was prepared to sign legislation that would allow indefinite detention without trial for terrorism suspects. Previously, President Obama had indicated he would veto the 2012 National Defense Authorization Act, section 1031, but has reportedly changed his position on the law.

If this legislation is enacted, this will be the first time since 1950 that such indefinite detention would be authorized in the United States. In addition to authorizing such detention, this legislation also prohibits the transfer of any detainees being currently held at Guantanamo onto United States soil for any reason, and would limit the ability to transfer these detainees to other countries, even if they have been cleared for release.

At the start of Obama’s administration, he had stated that one of his goals was to permanently close Guantanamo as a prison for terrorist suspects, going as far as to signing an Executive Order as to this plan. However, the signing of this legislation will further extend the operation of Guantanamo where currently 171 detainees are being held.

Additionally, this legislation will require the United States military to take custody of some terrorism suspects. Some of these suspects may already be detained within the borders and being handled by federal, state, and/or local law enforcement. In debating this legislation, “several senior administration officials, including the Secretary of Defense, the Attorney General, the Director of National Intelligence, the Director of the FBI, and the Director of the CIA, all raised objections that this provision interfered with the administration’s ability to effectively fight terrorism.” Recent statistics seem to support this argument: in the last 10 years over 400 people have been prosecuted in U.S. Federal Courts for terrorism related offenses, while, during that same period, only six cases have been prosecuted in the military commissions.

Human Rights organizations have issues with this legislation, and their concerns appear to be valid. To start with, and most obvious, is that people can be detained for suspicion of terrorism without ever having a chance to stand trial. Without trial, it is plausible that many innocent people will be held improperly; no fact finding will be required and potentially no direct evidence will be required to hold these suspects.

Secondly, the enactment of this law contradicts what President Obama had promised at the beginning of his term. The closing of Guantanamo became a priority due to several issues with the site; there were allegations of torture, improper conditions and the fact that many detainees had be at the location, without trial or other investigation, for longer than what many thought was proper. This legislation specifically authorizes this indefinite detention, an issue which President Obama stated he would resolve.

Terrorism is an important issue that the United States must address. However, there are proven methods to do so without this legislation. Specifically, it is unnecessary for the military to take custody of suspects from agencies that are already set up and seemingly acting more effectively in handling these terrorism cases. The added cases the military would have to handle would only serve to make them less effective.

For the article and position of the Human Rights Watch, click here.

Thursday, December 8, 2011

Obama Administration Takes Stand to Protect Gay Rights Abroad

The United States government appears to be getting more serious about gay rights. On Tuesday, President Obama’s administration “bluntly warned the world against gay and lesbian discrimination.” Secretary of State Hillary Rodham Clinton made it clear to those in attendance, which included diplomats from Arab, African and other nations where homosexuality is considered a crime, that the United States “will use foreign assistance as well as diplomacy to back its insistence that gay rights are fully equal to other basic human rights. “

Mrs. Clinton likened the struggle for gay equality to that of women’s and racial equality. She specifically negated religious and cultural traditions do not excuse the type of discrimination homosexuals face, especially in countries “where brutality and discrimination against gay people is tolerated or encouraged.” Ms. Clinton went on to say that "gay rights are human rights, and human rights are gay rights," and "It should never be a crime to be gay." Apparently, many in the audience were not exactly pleased with Mrs. Clinton’s speech and left the room immediately after her speech was completed.

While President Obama’s administration is taking a stronger stance on this issue, no specific consequences were spelled out for countries violating these rights. And while President Obama is attempting to curb discrimination overseas, he has yet to back gay marriage. Many gay supporters find his failure to support gay marriage and the delay in repealing “Don’t ask, don’t tell” as disheartening; as such, some see this latest advocacy as an outreach to homosexuals, “a core Democratic constituency at home”, in order to garner their support in the 2012 Presidential election.

The protection of all human rights is of primary importance; as Mrs. Clinton states, it does not matter if one is gay or not, as human rights apply to all persons. It is admirable that the Obama administration is attempting to protect these rights in areas where homosexuals are considered criminals and are subject to government approved violence.

However, there is still much to address in the United States regarding gay rights. Homosexuals are much more than an important constituency that must be placated to earn their votes. Also, as Republican Presidential candidate Mitt Romney suggest, gay rights should not necessarily be the deciding factor for whether to provide aid to or interact with foreign countries; although specific consequences have not been enumerated, the reduction in aid and/or trade seem like likely candidates. It is hoped that this policy is much more than just a play for more support from homosexuals as the election draws nearer, but without further support for gay rights in the U.S. by the President and a lack of more specifics on this new policy, it is hard to see it as much else.

The entire AP article can be viewed here.

Thursday, December 1, 2011

Technology Outpacing the Law?

On Monday, the Associated Press published an interesting article describing how advancing technology (specifically Facebook and smartphones) have developed faster than the law can keep up with. T specific issue in question is the ability of inmates to use said technology to harass and intimidate their victims.

Previously, for an inmate to intimidate potential witnesses or harass their former victims they would have to obtain the services from somebody on “the outside”. Now, with the increase in the number of smuggled phones coming into prisons, inmates can use these devices to harass and intimidate on their own. Since 2008, the number of telephones confiscated by the Federal Bureau of Prisons has doubled to 3,684.
Unfortunately, in many of these cases it is difficult to determine who is actually sending the messages. Even in the rare occasion where they are able to determine the inmate is the one sending the harassing messages, they often face no serious consequences.

Another issue is that these inmates have seemingly found gaps in existing laws. For example, in some states, “no contact” orders do not apply to persons once they are in custody. However, due to the increasing awareness of this issue some states are now starting to take action in an attempt to prevent this type of harassment. Oregon legislators passed a law preventing inmates from contacting their domestic violence victims from behind bars; California officials are beginning to work closely with Facebook to identify and delete inmate accounts. California legislators have also enacted a law which punishes corrections employees or visitors up to six (6) months in jail for smuggling in smartphone devices; inmates in California caught with smartphones can lose up to 180 days of early-release credit, although no additional time is added to their sentences.

This harassment and intimidation makes it harder for the legal system in that many witnesses may choose not to testify due to the fear of being harmed. Victims of inmates are in fear of what will happen to them when the inmate is released. Victims are also fearful that these inmates now have access to their victims’ information, including pictures and names of family members.

For some, the easy solution for the victims is to: 1) delete their Facebook account; 2) block the inmate from viewing their page and sending messages; and/or, 3) setting their Facebook page to the highest privacy settings. There is no doubt merit to these suggestions (for anybody wishing not to have their life made public via Facebook), although these suggestions are not 100% effective. Many of the more tech-savvy inmates will find ways around these safeguards, and there are still other ways for inmates to use their access to technology to harass and intimidate outside of Facebook. While all individuals need to take steps to protect their privacy to a level they see fit, states must also take steps to close loopholes in their laws and create more suitable consequences to deal with developing technology and its possible misuse.