32.7 - Outrage(s) of the Week

Outrage(s) of the Week

Finally for this week is our other regular feature, the Outrage of the Week.

I had two possibilities this week, one of which is overall potentially much more significant that the other but that other one is just so cheap, so low, that I found it hard to choose.

So I'll lay them both out. You can decide.

The cheap, low one is from last month.

In November 2016, the Centers for Medicare and Medicaid Services adopted a rule that prohibited nursing homes that accept Medicare or Medicaid funds from including forced arbitration language in their resident contracts.

Forced arbitration - I have talked about this before - is where in order to use a product or service you have to forswear your rights to go to court even as a member of a class action suit and agree to let any dispute be settled by a supposedly neutral arbiter chosen by the corporation whose income depends on being contracted by corporations to handle such arbitrations - which is a good part of the reason why corporations win 93% of the time.

More specifically, it means, in this instance, that in order to get admitted to the nursing home, prospective residents and their families would have to sign away their rights to take the corporation to court and agree that any dispute, even up to allegations of abuse, neglect, or sexual assault, would be settled by such a "neutral" arbiter. Don't agree? You don't get in. Take it or leave it; if you don't, there are others who will so we don't give a damn.

So as of last November, the rule became that nursing homes couldn't do that. Now, the Centers for Medicare and Medicaid Services want to undo that rule and again leave the elderly and their caretakers, at a time when they are under great emotional stress, to the tender mercies of the nursing home industry, which of course has been lobbying and suing over the rule ever since it went into effect.

There is just no other word for this but "low." It is so unfeelingly despicable, so morally outrageous, so ... low, that I don't know what else to say about it.

So let's move on the other other case.

First, you may know this but just to be sure: An amicus brief - properly, amicus curiae, literally "friend of the court" - is a legal brief filed by someone who wants to address some aspect of a case but who is not a party to it. Usually they are filed as support for one side or the other.

The ACLU reports that the TheRump administration has filed an amicus brief with the Supreme Court arguing - follow me here - that businesses have a constitutional right to discriminate against LGBTQ people, that a business could properly and rightly put out a sign saying "We Don't Sell To Gays" even if a state or Congress says such discrimination is illegal.

The case revolves around a baker who ran afoul of Colorado's anti-discrimination laws when he refused to make a wedding cake for a gay couple and who now wants SCOTUS to free him from any consequences of that. And now the White House has weighed in on his side because they insist it is his constitutional right to be a bigot, not just personally, but in his business dealings.

What makes this especially outrageous - and dangerous - is that the baker and the White House are not even "just" making the hackneyed claim that it's a freedom of religion issue: The baker insists - with White House backing - that creating a wedding cake is an act of creative expression to the point where it makes him a participant in the event, in the celebration, and anyone attending would assume that the cake meant he approved of the union.*

Therefore, the argument goes, denying him the "freedom" to be a bigot, denying him the "freedom" to refuse to serve a same-sex couple, becomes "compelled speech," he is "compelled" to say he supports same-sex marriage, and compelled speech violates the First Amendment.

In other words, they are claiming that not only his freedom of religion is at stake, but his freedom of speech as well.

But where does this logic end? If it's a violation of First Amendment rights to say that you cannot discriminate against others, that you can't be a bigot in your dealings with the public, where does it end? How can it be unconstitutional to say you can't discriminate against LGBTQ people but constitutional to say you can't do it in the case of blacks? or women? or Jews? or Muslims? or anyone else you happen to dislike or disapprove of?

The White House brief tries to thread that needle, claiming that this exemption for bigotry would not apply to discrimination based on race by arguing, in effect, that discrimination based on race is really, really bad - but discrimination based on being LGBTQ? Eh, not so much.

Which just proves that they are as bigoted and un-American as the baker - and every bit as much an outrage.

*Because after all, whenever you see a wedding cake, don't you immediately think about the baker's opinion of the marriage? Yeah, me neither.