Thursday, February 23, 2012

The Occupy Movement And The Anti Obama HHS Birth Control Mandate People of Faith

If you are not reading Mirrors of Justice on the HHS mandate issue you should. Great reading every day. Today want to engage this post HHS vs. OWS: On the Prudence in First Amendment Jurisprudence

It is interesting too consider how the First Amendment issues of the OCCUPY movement are similar , and dissimilar to the trial that Faith groups are going through as to the Obama HHS Birth Control Mandate.

Through social media I am aware of some very devout Catholics that are a part of Occupy.

By "devout" I also mean Orthodox. I do get the sense though that many in Occupy see the Church as part of the oppressive 1 percent. I have engaged many that are cheer leading the Obama White House moves. I think this is folly.

A Methodist minister very involved in the Seattle Occupy movement had this article up the other day.
Occupying Faith: What Occupy Can Learn From the Mistakes of The Church A celebrated Occupy chaplain weighs in on Jesus, the failures of Christianity, and the future of Occupy.

Now there is a lot I disagree with in that article , but for this post that is not the point. Some of the aims of Occupy as you can see in his piece are well radical to many ears. Such as :

Will it offer a whole new way of life, a new vision of how society is structured, a value system of meaning that pulls people together towards common purpose and desire? Will it, for example, redefine property rights to include the right of a river to run free of pollutants? Will it redefine borders so that immigration is no longer a relevant word? Will it redefine wealth so that neither an aristocracy nor generational poverty exist? Will it redefine economy so that commonwealth trumps segregated wealth? In other words, will the Occupy Movement evolve into a vanguard that fundamentally transforms, and radically restructures the American way of life?

Well Godspeed if that is your view. However I might suggest to OCCUPY that some of these ideas ( as well as others) might be vastly unpopular. They might need the 1st amendment sanctuary of a a Faith community for assistance. However more to the point as Prof Vischer pointed out last year:

...The second question: how did rolling back – or at least holding the line on – conscience protections become a hallmark of a progressive political agenda? This is a much trickier inquiry than parsing regulatory language. One relevant development is progressives’ tendency to conceive of freedom – and the government’s responsibility to safeguard that freedom – in terms of positive liberty, not just negative liberty. Negative liberty requires protection against interference with the pursuit of basic goods; positive liberty requires affirmative assistance in securing basic goods.

As progressives have tended to expand the range of goods for which the government’s affirmative assistance is required, the potential for conflict with a provider’s liberty becomes greater. Nowhere is this trend more pronounced than in the debates over reproductive rights. Arguments for conscience protection emerge from a long tradition of negative liberty; arguments for guaranteed access to a particular good or service – backed up in many cases by state power – emerge from a much more recent tradition of positive liberty.A closely related development is a shifting view ofprofessional licenses. Generally the state’s licensing authority has been viewed as a means by which to ensure a provider’s competence. As access to goods and services becomes an essential dimension of meaningful liberty (in progressives’ eyes), there is a stronger justification for viewing licensed providers as quasi-public officials, and the license becomes a means of ensuring that governmental objectives are met.

Progressives are quick to rally to the defense of a student forced to violate her conscience by participating in the pledge of allegiance. Few progressives have rallied to the defense of pharmacists required by state law to sell the morning-after pill. In my view, this is a progressive blind spot that stands in tension with the overarching progressive commitment to freedom from state coercion in matters comprising a person’s moral identity and integrity. Progressives have shown a steady shift in their willingness to accept incursions on conscience in order to further other socially desirable goals. Progressives may eventually come to regret this shift – state power unbounded by conscience protections is not necessarily captive to progressive causes – but so far there is very little indication of remorse. President Obama’s foray into the debate, though certainly not a disastrous turn of events, shows little indication that the partisan presumptions about conscience will change anytime soon.

OCCUPY needs to think about that part I bolded IMHO.

Which brings us to today's piece by Prof Robert Hockett at HHS vs. OWS: On the Prudence in First Amendment Jurisprudence.

This is where I disagree that the same concerns are present in all things.:

... I thought Mayor Bloomberg's 'crackdown' on the movement this past November wrong-headed. One upshot of that conviction was this OpEd published in the New York Daily News at the time, a longer rendition of which was posted on Dorf on Law here.

It strikes me now that there is an instructive analogy to be drawn between that case and the case of the first rendition of the HHS's mandate - 'Mandate 1.0' - that we've all discussed here over the past several weeks. The link has to do with the 'prudence' one might hope to find in such government actions as sometimes implicate First Amendment jurisprudence or the values given expression in that jusrisprudence. Pursuant to this prudence, wise government functionaries accommodate exercises of First-Amendment-implicating freedoms even when not, strictly speaking, constitutionally required to do so. Why do we hope, as I put it, to find this form of prudence in government decisions? I think there are are least two complementary reasons. One is that our political society at large often learns much from that 'witness' which is the flowering and flourishing of 'alternative' takes on many practices and lifeways that majorities have come to take for granted. Another is that individual citizens often grow and flower as human souls both through witnessing and through participating in such experiments - recapitulating, in their less fateful and momentous but nevertheless important ways, the transformative experience of the 'upper room.'

I think to be honest we are dealing with two different first amendment concerns here. First there is no doubt that in our tradition we have the Government exercising prudence to First Amendment religious liberty concerns when legally they do not have to do so.

However does this work for speech and protests? Again we come to the issue I have blogged about the most as to Occupy. That is the emerging problem of viewpoint discrimination.

I noted the problem of viewpoint discrimination during the Wisconsin protest over actions of the Governor and the State legislature that basically took over the State Capitol last year.

See Ann Althouse' post Is it viewpoint discrimination under the First Amendment for Wisconsin to permit the protesters to use the Capitol building as it has over the past 10+ days?

...In the current Wisconsin situation, the protesters are being allowed to do many, many things that ordinarily no one does. It's hard to imagine how the state could operate in the future if other groups were given equal treatment and permitted to stay overnight for days on end, to post thousands of signs all over the historic marble walls and pillars, to prop and post signs on the monuments, to bang drums and use a bullhorn in the rotunda to give speeches and lead chants all day long for days on end. Tell me then, what will happen when the next protester comes along and the next and the next? Hasn't the state opened the Capitol as a free speech forum in which viewpoint discrimination will be forbidden under the First Amendment?...

.....UPDATE 2: Prof. Downs emails:
Ann raises points that merit serious First Amendment attention. In my talk last Wednesday, I raised the concern about viewpoint discrimination, but said it was outweighed at that point by public necessity. But the necessity position loses force as time passes, and police are able to adjust to the situation. Regardless of where one stands on this particular issue, it is never a valid or good thing if government grants special First Amendment rights to one group or set of protesters that it would not extend to all other groups. This is bedrock First Amendment principle based on a long history of experience. And police need to maintain a position of absolute neutrality in such matters. And it doesn't matter how peaceful or respectful a group might be behaving, for such otherwise laudatory behavior does not entitle anyone to special treatement under the law. The First Amendment either applies equally to everyone, or it is subject to political barter

I largely agree with, and as too Occupy we have this in spades. Lets say for instance at the next National Right To Life Rally a few hundred souls decide to stay behind and pitch some tents. Let's say right in the place is OCCUPY right now. That is McPherson Square near the White House.

In fact for all practical purpose it become the National Outside Cathedral of protesting the" Birth Control Mandate ". Let's say this happened nationwide!

Count me skeptical ,but the Pro Life movement does not exactly have the same cool influential allies in the media . I suspect the National Park Service would take a dim view of this ,and the "Cathedral" would be shut down. But how are we different than Occupy?

This example becomes much more vivid if this was let's say the KLAN or P.E.T.A. We have the Government in other words protecting certain kinds of speech and not others.

Now it's true as Professor Downs said in all protests some accommodation can be had. For instance to give a chance for things to cool off ,or for public safety. But at some point public order must be restored . If not we shall basically be in violation of the First Amendment for all practical purposes. Prof Hockett might visualize the community being tolerant of such diversity , but history shows us it's now. So the need for even application of the law as time and space requirement for Speech.

There are liberty concerns with both speech ,and religion in the First Amendment. I just say at times though they are different somewhat on occasion.

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