Monthly Archives: December 2017

Doug Jones and African Americans in Alabama: Is He Blowing It?

(Quick note:  If you are looking for the post on the gerrymandering case, you should scroll down while on the main page of this site, and you’ll find it.)

When you’re a candidate in an election that’s looking really close, it stands to reason that you should try to do everything right.  That includes knowing how to convince voters in your potential support base that you care about them personally and that you are someone they can relate to.  Based on an NPR report, it sounds as if Doug Jones may not be doing a very good job of that in his campaign against Roy Moore for the Alabama Senate seat.  (As I write this post, it is Tuesday, December 12.  I do not yet know what the outcome of the election will be, but I told the class I met with last night that I think Roy Moore will probably win it.)

It needs to be remembered that the Republican Party is the party that can count on its voters to brave all wind and weather to vote, while the Democratic Party has to depend much more on voters who need some prodding and persuading to think that their vote will make any difference.  It also needs to be remembered that, in the South–especially the Deep South–the party line closely resembles the color line, with most whites voting Republican and most African Americans and Latinos voting Democratic if they feel moved to vote at all.  It therefore stands to reason that, if you are Doug Jones, (1) you will want there to be a massive get-out-the-vote campaign among non-whites (which I believe the party is doing), and (2) you cannot afford to have non-whites feeling snubbed by you.

With that in mind, this morning on NPR, Rachel Martin visited with an African American man named Eugene Jones who has run a barber shop in Birmingham for 45 years.  Now, Eugene Jones made it clear that he is voting for Doug Jones.  But he also made it clear why, in his opinion, some others may not feel any such urge even if they don’t want Roy Moore representing them in the Senate.  Why?  He says that some weeks ago Doug Jones came into his barber shop, but he seemed afraid and in a hurry to keep moving.  Now, “afraid” may have been a misperception, but it does seem clear that Doug Jones did not come across as having his heart in conversing with prospective supporters and listening to them say what was on their minds.  There is even the impression that Doug Jones feels he has already earned the black vote by prosecuting those Klansmen who were involved in the 1963 Birmingham church bombing that killed four young girls.

It sounds to me, at least judging from that one interview with one Birmingham barber, that Doug Jones may be making the same mistake with black voters in Alabama that Hillary Clinton made last year with working-class white voters in the swing states:  taking their votes for granted and not giving full value to connecting with them.

Doug Jones is also making a big deal in his campaign about the bad moral character of his opponent.  Remember how well that worked for Hillary Clinton last year?

NPR report, December 11, 2017

Fiscal Federalism: CHIP in Jeopardy

It should be remembered that Congress, with a Republican majority, created the Children’s Health Insurance Program (CHIP) in 1997, one year after passing the welfare reform act.  The welfare reform act made welfare harder to get, but CHIP added a social program.  Like Medicaid, it is a program of fiscal federalism, meaning specifically that the federal government dispenses money through the state bureaucracies, with the participating states adding some money of their own.

Well, Congress has failed to renew the funding for CHIP, and a lot of states simply don’t have the money to keep it going for very much longer without the money from Washington, so CHIP is in danger if Congress doesn’t renew it and get some funds dispensed.

NPR report, December 12, 2017

A Case about a Wedding Cake

On December 5, 2017, the Supreme Court heard arguments in a case involving a baker in Colorado whose religious beliefs made him unwilling to provide a designer wedding cake for a gay male couple.  Like all other cases that they hear this season, the ruling is expected this coming spring.

Let’s start with what this case is not.  This case is not about the 2013 gay marriage ruling Obergefell v. Hodges.  In that ruling, of course, the Court, in a 5-4 decision with Anthony Kennedy casting the swing vote and writing the opinion, required states to license and recognize same-sex marriages.  (On a side note, the Court recently voted not to apply that ruling to requiring states to provide gay married couples with all of the benefits that they provide to man-woman couples, so there’s still an aspect of gay marriage that’s going to differ from state to state.)  This Colorado case is not about the obligations of states when it comes to gay couples.

For that reason, this Colorado case is not at all the same kind of case as the one a few years ago involving Kim Davis of Kansas.  True, Kim Davis was claiming that she was entitled to a religious exemption from assisting with gay marriages, but that’s where the similarity ends.  Kim Davis was a county clerk, exercising authority over a whole staff of deputy clerks, refusing to issue marriage licenses to gay couples in that office, meaning that any gay couple in that county who wanted a marriage license would have to drive an extra hundred miles or two and get the license in another county.  Because the Supreme Court had ruled that no state could refuse to license gay marriages, and since a county clerk’s office is a subdivision of the state, Kim Davis was acting, not as a private individual but as the voice of the state.  Like it or not, she did not have a legal leg to stand on.

The Colorado case is completely different.  What is being challenged is the position of Colorado’s Civil Rights Commission against a private business, Masterpiece Cakeshop, for refusing to custom-make a cake for a gay couple’s wedding.  This bakery sold both standard cakes (just reach into the fridge, pull one out, take it to the cash register and buy it) and more expensive custom-made cakes.  Although the baker, Jack Phillips, was not being asked to put any writing on the cake, he would still be putting artistic expression into it, thus contributing his artistic talents to a wedding that was against his religious beliefs.  The baker did not have any objection to selling them one of the standard cakes in the cooler.  (As a result of this case, by the way, Phillips has stopped selling custom-made cakes, a decision that is costing him a considerable amount of money.)

While Kim Davis did not have a freedom of religion case, Jack Phillips does.  (This has nothing to do with whether I think he’ll win, or whether I want him to win; the point is, he has a case, as does the state bureaucracy that he’s up against.)  It’s one of those instances where a religious belief clashes with a state law.  Thus, to understand the constitutional arguments for each side, we need to consider the case law precedents involving clashes between religious belief and state law.  With that in mind, two key points need to be remembered:

  1. When a law is generally applicable and not designed to interfere with the practice of a religion, the Court has usually ruled that, if a religious group is adversely affected, it’s that religious group’s own tough luck.  The presence of a religious belief does not, in itself, obligate the state to grant an exemption.
  2. The Supreme Court has not been absolute and rigid about this.  Generally speaking, the Court is more likely to require a state to grant a religious exemption to a compulsory law than a prohibitive law.

Getting past the constitutional technicalities, it cannot be overlooked that there is a lot of emotion involved.  For the young men who were told by Jack Phillips that he would not sell them a custom-made cake for their wedding, it was deeply hurtful; it felt to them like an instance of being hated for what they are.  In the Court arguments, questions were also raised about whether granting this exemption would mean that businesses could refuse to make cakes celebrating women getting promotions at work if they believed that woman’s place is in the home, or birthday cakes for African American children if they believed that black lives were not worth celebrating.  Indeed, justices always take into account not just what is a fair ruling in this particular case, but what precedents it will set for other cases.

As is true in other cases, all eyes are on Anthony Kennedy.  In the questioning, he seemed to be more on the side of the gay couple and the state than the baker, but it’s a mistake to predict how a justice will vote based on which side’s lawyers the justices asks more grilling questions to.

By the way, the U.S. Justice Department, run by Trump appointee Jeff Sessions, is on the side of the baker.  It’s funny how things change, because if this were Loretta Lynch’s Justice Department, it would probably be on the side of the gay couple and the state.  Oh, and the state?  Colorado?  Back in the ’90s, Colorado was the one with one of the nastiest anti-gay laws in the country, so things do change rapidly, especially where gay rights issues are concerned.

Article in, December 5, 2017

Nina Totenberg’s report on NPR, December 5, 2017