Occasional comments about business and politics in Portland, Oregon, mixed in with stories from our city's colorful if not always compliant past.
"The more pity, that fools may not speak wisely what wise men do foolishly." -- Touchstone
I will believe what happens next in videos. I won't know which "Lord of the Rings" or "50 Shades of Grey" character I am. No one will suggest posts to me. I will have to find my own pictures of acrobatic cats. And I'll have to find my own good deals on car insurance.
A few weeks ago, the Supreme Court held, in a case called Hobby Lobby after one of the parties, that the Religious Freedom Restoration Act (RFRA, pronouced "Riff-ra") prohibits the Department of Health and Human Services (HHS) from requiring three closely-held corporations to purchase health insurance for their employees that covered methods of contraception that violated the sincerely-held religious beliefs of their owners. HHS already allowed religious corporations to opt out of providing contraceptive coverage against the principles of the relevant religion, and the court found that HHS could easily allow for-profit businesses owned by religions persons to similarly opt out. Corporations, the court said, are "persons" protected by RFRA. Here is the first money quote from the opinion:
As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA's definition of "persons." But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations' financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
In holding that Conestoga, as a "secular, for-profit corporation," lacks RFRA protection, the Third Circuit wrote as follows:
"General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors." 724 F. 3d, at 385 (emphasis added).
All of this is true - but quite beside the point. Corporations, "separate and apart from" the human beings who own, run, and are employed by them, cannot do anything at all.
The court is saying that Hobby Lobby and the other two businesses do not have religious freedom rights of their own; their right to religious freedom is merely derivative of the rights of their shareholders, officers, and employees.
Now for the second money quote from the court's opinion:
Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere "beliefs" of a corporation. HHS goes so far as to raise the specter of "divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric."
These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders - including institutional investors with their own set of stakeholders - would agree to run a corporation under the same religious beliefs seems improbable.
Now recall to mind the Citizens United case from 2010. In that case the Supreme Court held that the First Amendment, and specifically the provision that protects the right to speak freely, prohibits the government from limiting the amount of money that corporations and labor unions can spend on independent political advertising. (The ruling did not strike down limits on corporate and union contributions to campaigns and candidates.) Put another way, in 2010 the Supreme Court held that corporations and unions, both large and small, could form and express opinions about political candidates that the First Amendment's free speech provision would protect. Now, in 2014, the Supreme Court has held that only closely-held corporations with a handful of shareholders can form opinions about religion. That is, according to the Supreme Court any corporation can form an opinion about Jeff Merkley or Monica Wehby that the First Amendment protects, but only a closely-held corporation can form a protected opinion about the strictures of Leviticus. The court's retreated, in a small way, from its statement in Citizens United that the First Amendment grants the right to corporations and unions to spend what they like to support or oppose candidates independently of the views of their shareholders and members. I don't think the majority meant to say that, but say it they did.
I recently applied for the TSA's Global Entry program, which for a small fee will allow me to keep my shoes on when I go through airport security. At the end of a short interview with a very pleasant and professional TSA agent at the airport, he told me that I would receive an e-mail in a few minutes with the approval, and in fact I received an approval eight minutes later.
If you enrolled in Global Entry, you may begin using the kiosk immediately. Global Entry cards are only issued to Global Entry members who are U.S. citizens, Lawful Permanent Residents or Mexican Nationals (who are not current SENTRI members). Global Entry cards are not valid at the Global Entry kiosks.
I was gratified to learn that I can begin using the kiosk immediately, but bemused to read that Global Entry cards are not valid at the Global Entry kiosks. Where, then, would they be valid, if not with the agency that issues them? I've thought about trying to use mine to ride the streetcar.
Wanting to download Google Earth to my computer, I used Google to find the website. Picking one on the first page, I clicked to obtain the download. As all good sites do, this one asked me to read and click-sign a licensing agreement. Here's a portion of the licensing agreement that Google offered me, obscurantist even by my high standards::
إليهما معًا بالاسم "بنود الخدمة"). تتم الإشارة في هذه الاتفاقية إلى برنامج Google أو أي جزء منه باسم "البرنامج".
1. استخدام البرنامج؛ القيود
استخدام البرنامج. بالنسبة لمستخدم نهائي بمفرده، يتاح البرنامج من أجلك كما يمكن لك استخدامه فقط للاستخدام الشخصي وغير التجاري وفقًا لبنود الخدمة هذه ولوثائق البرنامج. بالنسبة للمستخدمين النهائيين من المؤسسات أو الهيئات الحكومية، يجوز استخدام البرنامج بواسطتك أو بواسطة موظفيك للاستخدام الداخلي وفقًا لبنود الخدمة ووثائق البرنامج هذه (يتم الإشارة إلى المستخدمين النهائيين من الأفراد والمؤسسات والهيئات الحكومية في هذه الوثيقة بالاسم "أنت"). القيود. باستثناء الأمور التي اختصتك Google بترخيص القيام بها، لا يحق لك استخدام هذا البرنامج فيما يتعلق بأية منتجات أو أنظمة أو تطبيقات مثبتة أو متصلة بشكل آخر، أو ترتبط بمركبات تستخدم أو ذات صلة بما يلي:
(أ) التوجيه المتزامن على الطريق (بما في ذلك، على سبيل المثال وليس الحصر، التوجيه التفصيلي على الطريق وعمليات التوجيه الأخرى المُمكّنة من خلال استخدام جهاز استشعار)؛
ب) أية أنظمة أو وظائف للتحكم الآلي أو الذاتي في حركة المركبات؛ أوالسعة أو الموجزات المجمعة للإحداثيات الرقمية لخ
One thing to keep in mind as the Portland City Council debates the street fee -- charging residents and businesses a fee to maintain the streets, on the ground that the City's revenues aren't sufficient to pay to maintain the streets -- is that this is not a new problem. The City, its residents, and its muffler shops have known for years that the streets have been decaying faster than the City was maintaining them. Something over two years ago, the City announced that it would stop maintaining most streets at all, reserving its paving dollars for arterials and streets needed for emergencies.
A few months earlier, in late 2011, the City Council created the Office of Equity. The Council allocated it $1.2 million from the budget for fiscal year 2013-2014. While $1.2 million won't patch a lot of potholes, it still represented a new program at a time when the City Council was painfully aware (or should have been painfully aware) that it didn't have the money to fund its existing programs.
Another way to look at it is that the Councilors all agreed two years ago, and again last year, that funding the Office of Equity was more important than patching potholes and repairing the streets.
One of the distinctions between professional basketball and professional football is that if the owner of a basketball team, Donald Sterling, privately makes a racist remark about blacks to his girlfriend, the basketball commissioner fines him $2.5 million and boots him from the sport. If the owner of a football team, Daniel Snyder, publicly sells clothing emblazoned with his team's name (Redskins, a derogatory term for Native Americans), the football commissioner does nothing much, and in fact calls the Washington Redskins name a "unifying force that stands for strength, courage, pride, and respect." Whether Mr. Snyder and the football commissioner would take so cheerful a view of a team nickname that stood for the same qualities in their own ancestors is a question that so far they haven't answered in public.
A few years back, the Portland City Council created a new agency, the Office of Equity and Human Rights. Its mission statement is to provide "education and technical support to City staff and elected officials, leading to recognition and removal of systemic barriers to fair and just distribution of resources, access and opportunity, starting with issues of race and disability."
I had a vaguely good feeling about the Office of Equity when the Council created it -- it's nice to see our elected officials take seriously the problems and effects of racial discrimination -- but it seemed odd to me, and still does, that the mayor and councilors thought it necessary to form an agency to remind them not to discriminate against racial minorities and the disabled.
The Office of Equity may have its first challenge. Jack Graham, formerly the City's finance chief, has announced his intention to sue the City for discriminating against him on account of his race (he is black) and Commissioners Nick Fish, Amanda Fritz, and Steve Novick for remarks they made in connection with his performance. To oversimplify the heart of Mr. Graham's complaint, he believes that he was terminated as finance director for proposing improper transfers between one City fund and another, in response to direction from then-Mayor Sam Adams, when white finance managers who had actually completed a similar transfer from one fund to another were not disciplined, but continued to work for the City. The important sentences from the letter that Mr. Graham's lawyer sent to the City Attorney:
At the conclusion of the investigation [by an outside law firm the City hired], which erroneously concluded that Mr. Graham attempted to transfer Water and BES funds to the General Fund, the City and individual City Commissioners publicly communicated false, stigmatizing, and professionally damaging statements without first offering him a name clearing hearing. Even more shocking, Commissioners Fritz and Novick made false and signatizing statements about Mr. Graham to the media without even having read the investigation findings. In contrast the City turned a blind eye when white financial managers completed a comparable transfer in 2011 and did not make public statements impugning those managers' ethics or professional competency. [You can read the entire letter here, in PDF, courtesy of Willamette Week.]
It's a conundrum for the City. If the councilors believe that they have done nothing wrong, then they can't justly pay more than a pittance to settle Mr. Graham's claim. And if they do agree to pay more than a nominal amount to settle his claim, then they are admitting that Commissioners Fish, Fritz, and Novick need some training from the Office of Equity that they voted to create.
As is our custom, we celebrate Tax Day with a reading, usually drawn from the British lawyer, novelist, and humorist A.P. Herbert, best remembered for his series of Misleading Cases in the Common Law. Today's reading comes from his report of the case of Rex v. Puddle, in which, relying on information from that pertinacious litigant Albert P. Haddock (the author's alter ego), prosecuted a tax collector for blackmail. As Mr. Justice Trout, the judge in Mr. Herbert's story, gives his instructions to the jury, he says:
The prisoner in the dock, a Collector of Taxes for the district of South Hammersmith, stands charged with the odious crime which is commonly described as blackmail. That expression dates from very early times, when it was the custom to pay tribute to men of influence who were allied with certain robbers and brigands for protection from the devastations of the latter. The practice was made illegal by a statute of Queen Elizabeth's time, and ever since it has been classed by our Courts among the most contemptible and dangerous offences. A person, who, knowing the contents, sends or delivers a letter or writing demanding with menaces and without reasonable cause any chattel, money, or other property, commits felony and is liable to penal servitude for life. * * *
Now Mr. Haddock, the prosecutor in this case, received a letter from the prisoner demanding money. The letter was printed in ink of a bright red colour, and that is a circumstance which you may will take into account when you come to consider the intention of the letter and the effect which it may have had upon the mind of the recipient. For red is notoriously the colour of menace, of strife, of bloodshed and danger; and it is worthy of note that the prisoner's previous communications to Mr. Haddock had been printed in a quiet and pacific blue. The letter was as follows:
Previous applications for payment of the taxes due from you * * * having been made to you without effect, DEMAND is now made for payment, and I HEREBY GIVE YOU FINAL NOTICE that if the amount be not paid or remitted to me at the above address within SEVEN DAYS from this date steps will be taken for recovery by DISTRAINT, with costs.
E. Puddle, Collector.
'Collector,' I may observe in passing, was in other centuries a word commonly used to denote a highwayman. But you will not allow that point to influence you unduly. * * *
You will then have to ask yourselves, Was this menacing demand for money made with reasonable cause? You will bear in mind that Mr. Haddock is not a debtor or criminal; he has not taken another's property or done any disgraceful thing. his only offence is that by hard work he has earned a little money; and the suggestion is now made that he shall give away a fifth part of that money to other people. That being his position, you might well expect that he would be approached not with brusquerie but with signal honours, not with printed threats but with illuminated addresses.
[The jury eagerly found the prisoner guilty of blackmail, and he was sentenced to penal servitude for life, and solitary confinement for ten years, the sentences to run consecutively. The Court congratulated Mr. Haddock.]
Tomorrow we will return to our usual jovial support for the social welfare state.
Metro has long advocated development to take a "compact urban form." It's rather unsettling to see the Oregonian adopt that principle by moving to a tabloid form. I've had trouble reading it for the last week, perhaps because I'm old-fashioned (my friends would say "stodgy") enough to expect publications to follow the basic principle that page A7 should always be one page after page A6.