Jon Kyl - Objectively Pro-Discrimination

Under current law, health insurance companies can deny you coverage if they decide you actually might use a doctor. They can discriminate against broad classes of Amercians based on what they call in insurance-speak a "pre-existing condition." They can even go back after you turn in a claim and find some typo in your medical history form that allows them to dump you from the coverage rolls.

Jon Kyl, the #2 Republican in the Senate, thinks this is all fine and dandy.

The distance between the parties' leaders on health care was made clear on Tuesday when the No. 2 Republican in the Senate held a conference call with reporters.

Asked by ABC News about a package of insurance market reforms that have been endorsed not only by President Obama but also by the insurance industry, Sen. Jon Kyl came out against all three proposals.

In particular, the Arizona Republican signaled that he opposes requiring insurance companies nationwide to provide coverage without regard to pre-existing conditions; requiring them to charge everyone the same rate regardless of health status; and requiring all Americans to carry health insurance.

"One of the concerns I have about the approach of the Democrats ... is an assumption that there has to be a national mandate on all insurers to do various things," Kyl told ABC News when asked for his position the three issues.

"Those are techniques that states can, and some have, used in the past with fairly disastrous consequences," he said.

Part of what community rating would ban is allowing companies to charge women more money for health insurance, because they may use more care. And actuarial statistics show that the poor have a higher propensity for sickness due to environment and food choices, which means that they are discriminated against at a higher proportion in the insurance market. That's the system Jon Kyl wants to keep in place - a segregated system where large segments of society cannot even have the option of health insurance.

Even the insurance industry supports guaranteed issue and community rating. They want that along with a forced-market monopoly, with no competition from a public insurance option, so that the government can subsidize their businesses and turn people who cannot afford health insurance into criminals. But that would be LESS RADICAL than what Jon Kyl is proposing.

These are the people with whom we must engage in bipartisanship, or so it is told.

The Radical, Activist Roberts Court

Lost in the shuffle of the caterwauling about Sonia Sotomayor and the Ricci decision, aside from the fact that it reflects conservative judicial activism and the making of completely new law, is that it's not even clear law. That must be what you get when you adjudicate by empathy toward white firefighters.

In ruling for a group of white firefighters in New Haven on Monday, the Supreme Court tried to address a damned-if-you-do, damned-if-you-don’t quandary for many cities and other employers: what they should do when an employment test yields results that overwhelmingly favor whites.

But many legal experts said that instead of setting forth clear new rules, the court’s decision left things as muddled as ever for the nation’s employers — and seemed to ensure much more litigation over the explosive issue of employment discrimination.

“We don’t see clear, bright-line guidance here,” said Lars Etzkorn, a program director with the National League of Cities. “This is going to be good for employment lawyers.”

The Court invented a new standard in applying these tests which will make it more difficult for anyone using such tests for promotions or to address workplace discrimination, from businesses to government employers. The talk the language of "strict originalism" and just being umpires calling balls and strikes, but in reality, they use the means at their disposal to make the decisions that fit a right-wing ideology. John Roberts, with help from Anthony Kennedy, has radically shifted the Court.

Chief Justice John G. Roberts Jr. emerged as a canny strategist at the Supreme Court this term, laying the groundwork for bold changes that could take the court to the right even as the recent elections moved the nation to the left.

The court took mainly incremental steps in major cases concerning voting rights, employment discrimination, criminal procedure and campaign finance. But the chief justice’s fingerprints were on all of them, and he left clues that the court is only one decision away from fundamental change in many areas of the law.

Whether he will succeed depends on Justice Anthony M. Kennedy, the court’s swing vote. And there is reason to think that the chief justice has found a reliable ally when it counts.

“In the important cases, Kennedy ends up on the right,” said Thomas C. Goldstein, a student of the court and the founder of Scotusblog, which has compiled comprehensive statistics on the current term. The two justices agreed 86 percent of the time.

If the Roberts gang has their way, by September of this year the Court will, in all likelihood, overturn a good bit of the McCain-Feingold campaign finance law, especially as it relates to corporate spending, opening up a loophole that could "allow unlimited spending from corporate treasuries for television advertisements and other communications to support or oppose candidates." And Justice Sotomayor, replacing Souter, will have little impact on that.

George W. Bush's legacy of failure and extremism will live on for many, many years.

Trial Of The Century

Here in California, the big story of the day is the Prop. 8 hearing in the California Supreme Court. It starts at 9AM ET, and you can actually watch it at the California Channel. Large groups of activists will be watching the trial throughout the state, and last night there were a series of candlelight vigils.

There are three questions at play:

• Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

• Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

• If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

This is less a hearing about the Constitutional validity of a ban on gay marriage itself and more about these questions. However, the first question essentially asserts that the state Constitution cannot be amended to strip away fundamental rights (and essentially contradict another part of that Constitution). Brian Devine has a must-read on the legal issues involved at Calitics. And Attorney General Jerry Brown is arguing that the proposition should be thrown out.

Incidentally, on the side of allowing discrimination today, arguing for the measure's backers, is none other than Ken Starr.

Based on the way that the California Supreme Court works, it is likely that an opinion has already been formed.

The California Supreme Court may reveal Thursday whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex marriages will remain valid, during a high-stakes televised session that has sparked plans for demonstrations throughout the state.

By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. The ruling is due in 90 days.

Chief Justice Ronald M. George, who wrote the historic May 15, 2008, decision that gave same-sex couples the right to marry, will be the one to watch during the hearing because he is often in the majority and usually writes the rulings in the most controversial cases [...]

Most legal analysts expect that the court will garner enough votes to uphold existing marriages but not enough to overturn Proposition 8. The dissenters in May's 4-3 marriage ruling said the decision should be left to the voters.

One conservative constitutional scholar has said that the court could both affirm its historic May 15 ruling giving gays equality and uphold Proposition 8 by requiring the state to use a term other than "marriage" and apply it to all couples, gay and straight.

This is not the end of the fight for marriage equality, but just another marker along the road. Our Supreme Court judges here go through elections every ten years (remember that when you hear about "unelected judges"), so there are likely to be recall campaigns. And more ballot initiatives. And this is just one state in the union.

Let's hope for the wisdom of those sitting on the bench to understand the implications of a simple majority taking away the rights of a whole class of citizens.

...Pam's House Blend has a live chat of the hearings going. GLAAD has a media resource guide.

Strong Steps Backwards and Forwards On The Middle East

The Israeli assault on Gaza has ended. 50,000 Gazans are homeless and 21,000 buildings are destroyed. And at least 1,300 Palestinians and 13 Israelis are dead. And for what? Nobody seems to know, other than killing for killing's sake.

Elad Katzir, a potato farmer, was nervous as he drove through the lush fields, agreeing to stop the car only behind clumps of trees or bushes as cover in case of sniper fire. By one thicket, nestled among wildflowers, was a memorial to a soldier who was shot dead here while on patrol seven years ago.

“I do not feel any victory,” Mr. Katzir said. “I still do not feel safe.” [...]

“So they changed the security situation for the next six months, bravo,” said another potato farmer, Eyal Barad. He added, “They should have gone on longer and finished the job.”

After such a tremendous show of force, many Israelis were hoping to see a more definitive picture of victory, like a scene of Hamas leaders coming out of their bunkers and raising a white flag. At the very least, several said, Israel should not have left Gaza without Gilad Shalit, the Israeli corporal who was captured in a cross-border raid and taken into the Palestinian enclave in 2006 and has been held hostage by Hamas ever since.

There was no job to finish. The strategic interests in the assault were obscure. Hamas was never going to be destroyed because their destruction would have required a mass annihilation of the entire area. So they are predictably holding victory rallies and restoring order to the community. Meanwhile, the more moderate Fatah has been significantly weakened by the events, making more remote the possibility of their partnership in a peaceful solution.

Israel's 22-day assault on Hamas-ruled Gaza made the West Bank-based Palestinian Authority look ineffective and marginalized, unable to stop the carnage. Popular support for its peace talks with Israel, already declining, now seems weaker than ever.

And a tentative cease-fire that left Hamas still in charge of Gaza threatens to reinforce the rift between the Palestinian territories, further setting back hopes for a settlement of the decades-old Middle East conflict.

At an Arab summit in Kuwait on Monday, Palestinian Authority President Mahmoud Abbas pleaded for a revival of the power-sharing arrangement that broke apart in 2007 when Hamas, an armed Islamist movement, ousted his secular Fatah forces from Gaza in a ruthless factional fight.

He called for immediate talks between the two factions to form a "unity government" to rebuild the war-devastated territory, organize elections and negotiate peace with Israel [...]

But the authority has no means to reassert its presence in Gaza without the consent of Hamas. And although Hamas said it was open to a new power-sharing deal, it seemed in no hurry to strike one with Abbas, whom one Hamas official dismissed as "a full partner" in the Israeli assault.

"Hamas will be much less powerful militarily against Israel but significantly stronger against Fatah," said Ghassan Khatib, an independent Palestinian analyst in Ramallah. "No one will challenge its control of Gaza. It is in much less need of a unity government."

All of this is really bad news, and the outcome of 1,300 dead Gazans will not be overcome in a day or a week or maybe a year. But the Obama Administration is starting to move in the right direction. President Obama called leaders in the Middle East today, including Mahmoud Abbas, to "communicate his commitment to active engagement in pursuit of Arab-Israeli peace from the beginning of his term, and to express his hope for their continued cooperation and leadership." He talked about a major rebuilding effort in Gaza, taken hand-in-hand with Fatah, which I think would be smart. While the Saudis have pledged $1bn in aid much more is needed, as well as the open flow of supplies and medicine into the Strip. The US could gain lots of goodwill among Palestinian citizens by being a part of this effort.

(UPDATE: Also, this could backfire heavily. As noted above, the Palestinian Authority is viewed with deep suspicion in Gaza, and if they enter with the US to help rebuild, this could confirm the suspicions that the PA are colluders, and ruin their long-term credibility. Still, I don't know how that can get much worse at this point, so they might as well try to use some carrots. This is how Hamas got the people on their side, after all - by attending to their needs.)

In addition, there are rumors that George Mitchell will be the US envoy to the Middle East, and he is the model of an honest broker with a proven record of bringing warring factions together in the interest of peace. Not to mention he has studied the region and has some good ideas for steps forward.

Mr. Mitchell, 75, was appointed in 2000, in the waning days of the Clinton administration, to lead an international commission to investigate the causes of violence in the Middle East. He released a report in the spring of 2001, during the early days of the Bush administration, that called for a freeze on Israeli settlements in the West Bank and a Palestinian crackdown on terrorism.

Other Middle East specialists said Sunday that if Mr. Mitchell was named to the job, he would be seen by both sides as a tougher but more balanced negotiator than recent envoys, which could make some Israelis nervous. Mr. Mitchell has Lebanese as well as Irish roots: his father, Joseph Kilroy, was an orphan adopted by a Lebanese family whose Arabic name had been anglicized to Mitchell, and Mr. Mitchell was raised a Maronite Catholic by his Lebanese mother.

The appointment of Mr. Mitchell would be a strong suggestion “that Obama is going to free himself of the exclusive relationship that we’ve had with the Israelis,” said Aaron David Miller, a public policy analyst at the Woodrow Wilson International Center.

“This is the clearest indication to me that they’re trying to inject more balance into the Israeli-U.S. relationship,” he said.

Freezing the settlements is needed urgently, it's a major obstacle to peace right now in my view. Mitchell would signal all that is said above, but also an aggressiveness to pursue peace right from the beginning.

On a non-Obama-related note, the Israeli Supreme Court overturned the ban on Arab parties from participating in elections, which removes what would be a nasty bit of discrimination inside Israel. They are facing pressure from both inside and outside now to reject the knee-jerk reactionary stances of the past and press for peace. However, the February elections, with Benjamin Netanyahu lurking as a possible victor, will be crucial.

...Shorter Abe Foxman: George Mitchell would be bad for the Middle East because he's too fair and even-handed. Wait, that's not "shorter," that's exactly what he said. Abe, um, you said that out loud.

A Wedding Guest

I haven't done too much writing about Prop. 8 compared to my friends at my other blogosphere haunts. Over at Calitics we've devoted a substantial amount of time and resources to it, and we've raised over $50,000 at the Calitics ActBlue Page for Equality for All. I've been praiseworthy of the campaign at times, critical at others - I think their ads fail to put a face on who the discrimination would actually harm, and as such come off as vague and allow the theocons to distract and distort the issue ("they'll teach your kids how to be gay!!!") and drive the narrative. I've been happy that much of the progressive movement has come together to defend this attack on civil rights, and that even establishment figures like Maria Shriver and Dianne Feinstein have gone public for the cause (Barack Obama has allowed the campaign to use him in Web advertising, but there's an argument to be made that he could do more).

But instead of an analytical post (the short answer is that every single volunteer is vital because this will be an extremely close vote), I'd like to get a little personal. Today is Write To Marry Day, where hundreds of bloggers are posting about Prop. 8 and their thoughts about gay marriage and civil rights. I'd like to add my own by talking about the wedding I attended a few months ago.

It was unusual only for the fact that it was extremely casual. There was morning coffee and some pastries and other food and drinks set up on picnic benches at a park in the hills behind Berkeley, and a large field where the wedding was held. When the announcement was given for the ceremony to begin, everybody kind of meandered over to the field and stood around in a circle. The "aisle" for the couple to walk down had to be created impromptu. Eventually that got sorted out. Other than that, the event had what you might expect - two people who loved one another making a commitment to spend their lives together. It was entirely unremarkable and indistinguishable from any other wedding where I've been invited. Except for one thing.

The ceremony was conducted by Assemblymember (soon to be State Senator) Mark Leno. He is notable for having authored the marriage equality law that passed through the California legislature - twice - only to be vetoed by Governor Schwarzenegger. (Just remember that the next time someone tells you he's "practically a liberal." He's opposing Prop. 8, supposedly, but has gone completely silent on the issue.)

In brief remarks, Leno talked about how the issue was not made clear to him until the Massachusetts Supreme Court rendered their decision on the law. He quoted the text of the decision at length, particularly this portion:

The SJC ruling held that the Massachusetts constitution "forbids the creation of second-class citizens." The state Attorney General's office, which argued to the court that state law doesn't allow gay couples to marry, "has failed to identify any constitutionally adequate reason for denying civil marraige to same-sex couples," Marshall wrote.

The creation of second-class citizens is really the nub of this, said Leno. By defining marriage in such a way, those who would seek to ban gay marriage tell those who wish to love one another how they can do it. But this is part of the common experience of the human condition - the desire to love another man or woman and profess a commitment to them. What is perverse - indeed, irrational and against human nature - is to defy that love and that commitment. The right to marry is a right to share in the common experience of man. It has served the nation and the world with tangible societal benefits and promotion of the family. It is a profoundly conservative virtue.

And this was a very (small-c) conservative, simple wedding, just two people - two men - and their friends and family, coming together to express their love and joy. This is what those who would pass Prop. 8 would snuff out. Indeed they are the radicals - the kind of people who would express that equality is not an American value. They have to rewrite the Declaration of Independence to fit their worldview:

We hold these truths to be self-evident, that all men are created equal…

It's really as simple as that. I was thinking while attending this wedding that I would maybe write something about the feelings it engendered, the wonderful picture of basic civil rights being expressed. But it was totally unremarkable, which is why I waited so long. It was banal, even. It was just two people that love one another among the hundreds of millions and even billions on this planet. There was nothing that special about it.

Which is why it should not be singled out and rejected.

If you can, volunteer for No on 8 or donate to their cause. It's the best investment in normalcy that you'll ever make.

Prop. 8: Breaking It Down

The other day I wondered if the No on 8 side was being too cautious in their advertising, instead of putting an actual face on the discrimination and harm that would be suffered if marriage rights were eliminated for a particular class of people. Well, this video isn't exactly that, but it certainly makes the point about discrimination. Via Amanda at Pandagon, this is my favorite video of the cycle. A group redubbed the voices on a video of young people ranting about all the supposed consequences about gay marriage, and changed it so they say "interracial marriage." It's kind of perfect:



See, this comes down to discrimination, pure and simple. The other side wants to talk about ancillary outcomes, but really they want to hurt LGBT people. I mean, we have to be willing to say that. The other side has no problem outlining what they consider to be the stakes, as crazy as they think they are:

“This vote on whether we stop the gay-marriage juggernaut in California is Armageddon,” said Charles W. Colson, the founder of Prison Fellowship Ministries and an eminent evangelical voice, speaking to pastors in a video promoting Proposition 8. “We lose this, we are going to lose in a lot of other ways, including freedom of religion.”

Tony Perkins, president of the Family Research Council, a conservative Christian lobby based in Washington, said in an interview, “It’s more important than the presidential election.”

“We’ve picked bad presidents before, and we’ve survived as a nation,” said Mr. Perkins, who has made two trips to California in the last six weeks. “But we will not survive if we lose the institution of marriage.”

I'm glad that No on 8 is raising a lot of money, and that high-profile Californians like Maria Shriver are on board. But at some point in this final week, someone has to break this down. This is about harming same-sex couples.

Movement on CA Health Care - Thanks To The Courts And State Agencies

At this point the judiciary is pretty much the only government entity in this state I have a modicum of belief in; they aren't hamstrung by ridiculous rules that make it impossible to function, so they can simply follow the law. State agencies, when properly run, also can exhibit some independence. Lately, there have been several cases ruled in favor of reformers at the expense of malign protectors of the health care status quo.

After a series of investigations from the California Department of Public Health, 18 hospitals have been fined for substandard care.

Violations included an improperly inserted catheter, a ventilator that was not turned on and surgical tools left inside patients after operations [...]

The hospitals were fined $25,000 for each violation - the latest of dozens of penalties the state has issued in recent years to more than 40 hospitals.

"The number of penalties will decrease and the quality of care will dramatically improve as hospitals take action to improve," said Kathleen Billingsley, director of the health department's Center for Healthcare Quality. "The entire intent of these fines is to improve the overall quality of care in California."

As care is improved, so must access for treatment. The proposed cuts to Medi-Cal by the governor would have decimated the ability for the poor to find a doctor. The cuts never made it through district court.

A federal judge has ordered a temporary halt in the state's 10 percent reduction in Medi-Cal reimbursement rates, improving access to care for 6.5 million low-income patients but throwing a new wrench in already difficult budget negotiations.

The U.S. District Court decision forces the state to reimburse most Medi-Cal providers at rates prior to the 10 percent cut, which lawmakers and Gov. Arnold Schwarzenegger made effective July 1 as a cost-cutting measure to help resolve a $15.2 billion budget shortfall this year.

The move increases reimbursement rates the state pays to doctors, dentists, pharmacists, adult day-care centers and other providers who serve Medi-Cal patients. It excludes some hospitals who do not contract with the state and do not provide emergency care.

This just shows the fallacy of a cuts-only budget, which runs into all kinds of voter mandates and constitutional demands. The good news here is that reimbursement rates will be sustained, albeit at a level low enough that half of the state's doctors will still probably reject Medi-Cal patients. The Democratic budget would also have rescinded the Medi-Cal rate cuts.

In a separate decision in the State Supreme Court, the justices ruled that doctors cannot deny care to gays and lesbians based on moral objections.

Justice Joyce Kennard wrote that two Christian fertility doctors who refused to artificially inseminate a lesbian have neither a free speech right nor a religious exemption from the state's law, which "imposes on business establishments certain antidiscrimination obligations."

In the lawsuit that led to the ruling, Guadalupe Benitez, 36, of Oceanside said that the doctors treated her with fertility drugs and instructed her how to inseminate herself at home but told her their beliefs prevented them from inseminating her. One of the doctors referred her to another fertility specialist without moral objections, and Benitez has since given birth to three children.

Nevertheless, Benitez in 2001 sued the Vista-based North Coast Women's Care Medical Group. She and her lawyers successfully argued that a state law prohibiting businesses from discriminating based on sexual orientation applies to doctors.

Of course, we cannot rely on the courts to shape public policy. But they set the boundaries - the lines that lawmakers cannot cross. And those boundaries are leading to increased access and improved care.

AP: Bullying Bloggers And Lying About Democrats!

It shouldn't be too surprising that Barack Obama, who started his community organizing career working for a local church helping displaced steelworkers, would see some value in faith-based initiatives. And Bush's iteration of this policy was to talk about faith-based anti-poverty policies and then hand out cash to rich megachurches who did no such thing, so if money would legitimately be channeled to fight poverty I don't really care about the conduit. Where I drew the line is if Obama supported the ability for churches to fire workers based on their faith, as this AP article asserts.

According to Obama's own speech, that's not true:

"Now, make no mistake, as someone who used to teach constitutional law, I believe deeply in the separation of church and state, but I don't believe this partnership will endanger that idea - so long as we follow a few basic principles. First, if you get a federal grant, you can't use that grant money to proselytize to the people you help and you can't discriminate against them - or against the people you hire - on the basis of their religion. Second, federal dollars that go directly to churches, temples, and mosques can only be used on secular programs. And we'll also ensure that taxpayer dollars only go to those programs that actually work."

Churches already have a place in many communities, so they're an efficient conduit for these types of programs. Soup kitchens are often in church basements, and even as a secular humanist that doesn't make me jittery. If Obama is true to his word here, he's showing a respect for those church organizations who work to improve the lives of those in their community, as well as respecting the letter of the law.

The AP isn't getting their facts right. I know the blogosphere is in a mode where they assume the worst about Obama, and certainly it's merited in some cases. But while you can argue with this policy, he's not allowing discrimination.

UPDATE: Digby disagrees. I understand that she considers tax-exempt status to be a quid-pro-quo relationship for charity work. My preference would be to either codify that or to eliminate the tax exemption, something we'll never see. I don't know, this just doesn't bug me all that much.

UPDATE II: And now Steve Benen, who worked on this issue for Americans United Against the Separation of Church and State, weighs in. If he thought it was problematic he'd have no problem saying it. The first paragraph is notable:

The notion of the government contracting with religious ministries to provide social services is not, on its face, scandalous or unconstitutional. Groups like Catholic Charities and Lutheran Social Services have partnered with public officials for decades, almost always without incident. There have always been safeguards in place to protect church-state separation, the integrity of the ministry, and the rights of those who receive the benefits.

If Catholic Charities is truly prosyletizing and threatening to end their charity work if they're not allowed to hire only Catholics, that's one thing. But it's important to note that legally, there's not much recourse. The Supreme Court ruled 15 years ago that discrimination in the withholding of funds based on religion is unconstitutional. Government has to remain neutral in funding non-religious activities between secular and religious organizations. Some of it might be creative accounting, but that happens to be the law.

Schwarzonomics: Letting Businesses Rip Off Old People, Women, Blacks

When the Governor looks around and sees a mortgage crisis, a potential $10 billion dollar shortfall in the state budget, and failures to deal with pressing economic problems and instead push the problem off to the next generation, he always falls back on worker's compensation reform. This was the centerpiece of his economic agenda upon coming into office, it's what he always touts as the first step on getting California business moving again.

And it was based on discrimination.

A state appeals court ruled Monday that a 76-year-old Sacramento woman can't have her permanent disability benefits reduced because of her age.

The decision by the 3rd District Court of Appeal in Sacramento represents a small but significant victory for injured workers who argued for years that their benefits have been slashed by Gov. Arnold Schwarzenegger's overhaul of the workers' compensation system three years ago.

For the first time, the court said the injured workers are protected by the state's anti-discrimination laws. In this case, insurers and doctors can't use a worker's age, race or gender in determining permanent disability awards.

The road to economic solvency for Arnold Schwarzenegger was based on this; trying to take money from the permanently disabled because of their age or race or gender. We should all feel a little bit ashamed.

Now the job of the legislature is to permanently fix this injustice to put it in legal working order. Frank Russo has a lot more, but here's a taste:

Yesterday's decision by three judges of the California Court of Appeals that the so-called "reform" of workers' compensation laws--the law that Schwarzenegger demanded and the legislature enacted in 2004--cannot be used when it leads to discrimination based on gender or race is just the latest example of how badly that law was written. The legislature bought a pig in a poke when they were stampeded into adopting at a 3 a.m. committee hearing followed by floor votes of a complicated 75 page bill which almost none of them had read--or really considered.

Workers have been paying for this ever since.