The Justice Chronicle, Volume 22: King v. Burwell: What Does It Mean?

Thursday morning at breakfast the Today Show broke into its programming to announce a decision in the case of King v. Burwell. By a 6-3 decision the justices found for the defendant.

I’ve been disturbed at the news coverage on this. Virtually all the reporting makes it sound like a boxing match: Who won and who lost. I’m willing to bet that an embarrassingly small percentage of the population could name the case (King v. Burwell) or the issue that the court decided today.

The implications were clear: had the court found for the plaintiff the Affordable Care Act would likely not have been able to survive. So what were the particulars of the case?

The Affordable Care Act (ACA), also called “Obamacare” was signed into law in 2010 and mandated that nearly everyone purchase health insurance. Many of us work for companies that provide us with adequate health insurance, but many companies don’t If you’re a part time or per diem employee you may not get health care from your company. If you work for a small business they may not afford to pay for health insurance. If you’re under 65 and not employed (for any reason) you have nobody to provide you health insurance.

You’ve always been able to buy a health insurance policy on your own, but for many people that was not an option. Premiums were prohibitively high, and you can be denied for a host of pre-existing conditions. I have sleep apnea and before the ACA I would have been excluded from any private health coverage.

The ACA mandated that health insurance companies not exclude anyone for pre-existing conditions. Health insurance companies (rightly) argued that this doesn’t work for them because under this system nobody would buy health insurance until they needed it (much as you can’t buy fire insurance when your house is already on fire). The mandate was necessary as this provided health insurance companies a larger base of customers. That’s the basis of insurance: most people who buy insurance don’t need it and this pays for the minority who does.

But there was still another problem: a large percentage of our population still couldn’t afford to purchase health insurance. We can’t tell people they have to buy health insurance if they simply can’t afford to. Because of this the ACA provided subsidies for people whose earnings fall below a certain level.

The ACA wanted the states to participate in this and made this deal: if your state wishes, it can set up a health insurance exchange. For those eligible for subsidies, the federal government will pick up all of the cost for the first few years and most of the cost from then on. If a state refused to set up an exchange, the federal government would set one up. I believed that most states would see the value in setting up exchanges. I was wrong. Only 16 states set up exchanges and the rest depended on the federal government.

That’s all fine, but here’s where we get into the current lawsuit. Most of us get our health insurance through our employers and our employer pays part of the premium. For people who get their insurance through these exchanges, paying the full premium would be overly burdensome, and the ACA provides subsidies to help people buy insurance. Buried deep in the legislation is the phrase that subsidies are only available to people who purchase their health insurance on an exchange “established by the State.”

The plaintiffs argued that these subsidies are only valid for health insurance exchanges established by one of the 16 states, and that if you live in one of the states that doesn’t run its own exchange, you are not eligible for subsidies.

Frankly that would have sent the entire ACA into a death spiral. People in those 34 states would lose insurance because they couldn’t afford to purchase it. The loss of premiums would have made it much more difficult for insurance companies in those states to continue to provide coverage and many of them would stop providing insurance in those states at all.

In the majority ruling the Court found for the defendants, arguing that if this phrase meant to apply only to those 16 states, the seeds of its own destruction would have been written into the law. In other words this can’t have been the intent of the authors because they never would have written legislation whose implementation was impossible.

Simply put this was the last, desperate act of a group of people who don’t like President Obama, don’t like anything he supports, and hoped against hope that they could convince the Supreme Court to strike it down. Fortunately it didn’t work.

The Justice Chronicles, Volume 21: Discrimination and Homophobia is Alive and Well in Indiana

The latest darling of the 24 hour news cycle today brings us to the state of Indiana. On March 26, 2015 Governor Mike Pence signed into law the Religious Freedom Restoration Act. In the last 4 days the reaction has been strong on both sides. Sometimes I wonder if I’m the only one who asks this, but what does the law actually do? Glad you asked. You can find the text of the law here. Props to the Legal Information Institute housed at the law school of Cornell University for providing the text of this law.

The law states that if you believe homosexual relationships are sinful on religious grounds you should not be required to do business with homosexuals. Proponents of this law point to a bakery in Indianapolis called 111 Cakery. In 2014 a gay couple asked the bakery to provide the cake for their commitment ceremony (marriage was not legal at the time). The owners refused on the grounds that their religious beliefs prohibited them from participating in what they felt was a sinful act. The bakery has since gone out of business.

The RFRA states that religious freedom is a right granted in the U.S. Constitution. It further states that laws that are neutral toward religion may burden religious exercise and these burdens should not be in place unless there is a compelling justification.

In other words, government can pass a law that does not appear to violate someone’s religious beliefs and may yet nonetheless do so. In those cases there needs to be an exemption that does not compel someone to do something that violates his or her religious beliefs.

That sounds fine in the abstract but not in the execution. I dug into the text of this law and found this definition of “religious exercise”:

The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief. The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.

Individual religious exercise, therefore, does not require the backing of an existing denomination. You can be as racist, misogynist, homophobic or just plain mean as you want and claim religious exercise, even if your faith doesn’t.

Proponents of this law insist this is about religious freedom and not about discrimination. Since I’ve spent virtually all of my adult life in the field of religion I’m sure they take my support for granted.

They shouldn’t. I grew up in the South and witnessed discrimination from an early age. I also witnessed religious people who used faith to justify discrimination and were just as shameless. They argued that God justified segregation by claiming that those of African descent were the children of Ham described in Genesis 9:25.

Today almost nobody will admit to finding this racism acceptable but 50 years ago many did. Hopefully 50 years from now nobody will point to religious beliefs to justify homophobia, but that won’t happen unless we stand up today to condemn the RFRA.

Governor Pence and nearly everyone who is running for the Republican nomination for President swears this isn’t about discrimination but we’re not fooled. Homophobia is rapidly declining in the population but those who hide behind religion still control a disproportionate share of funding for candidates. We need to stand up for the inclusion that all legitimate religions profess.

Let’s all work to make homophobia just as distasteful as racial discrimination.

The Justice Chronicles, Volume 20: Sodomy As a Capital Offense? Really?

Several decades ago I had a conversation with my college roommate Rob Duston. At the time he was a student at the University of Virginia Law School, also known as Mr. Jefferson’s Law School.

For reasons I don’t remember our conversation turned to the topic of sex and what was prohibited in the Commonwealth of Virginia. Half as a joke Rob told me that “everything is illegal in Virginia except with your wife in one position.” I thought he was kidding.

Since then I’ve learned that sexual positions and partners occupy way too much time and energy in the lives of our legislators. In 1986 the Supreme Court found, in the case of Bowers v. Hardwick that states can pass laws that prohibit sex between homosexual, consenting adults. Fortunately it was overruled in 2003 by the case of Lawrence v. Texas.

Most of us believe that sexual orientation is not a choice but a given and that we should all be allowed to marry our soulmate, regardless of whether or not that person is the opposite sex or same sex. I’m blessed that I live in a society where my orientation is socially acceptable (and so is my wife’s) but I recognize, acknowledge, and love those whose orientation calls them to someone of the same sex. Many of these children of God have trusted me enough to share their stories with me and I’m grateful for that trust.

But we also live with the fact that there are those, even those in power, who feed into their own fear and turn it into discrimination. They believe that orientation is a choice and those who choose to be homosexual will be condemned by God.

As if that isn’t enough, they believe that those of us who are heterosexual will be condemned to Hell if we dare to tell homosexuals that they are loved. They believe that we will be condemned because we give them “false hope” that God loves them.

Enter Matt McLaughlin. He is a lawyer from Huntington Beach, California and an alleged Christian. He is collecting signatures for a ballot initiative that would make sodomy a capital offense. He even states that they should be put to death by “bullets to the head or any other convenient method.”

OK, I’m a Christian and believe that my life works best when I live in harmony with God’s plan for me. But I don’t believe that my salvation depends on my hating the people Matt McLaughlin hates. If salvation is based on love and inclusion (as Jesus believed) I don’t believe that I have to choose sides on marriage equality. I have dozens of gay friends who I expect to see in Heaven. I pray they will be there because of love.

And I pray they love their husbands and wives as much as I love my wife.

The Justice Chronciles, Volume 19: 50 Years After Selma and We're Still Not Done

Today is the 50 anniversary of the day most Americans heard about Selma, Alabama. March 7, 1965 was a rough day.

The events actually began on February 18th when a 26 year old black man named Jimmie Lee Jackson (1938-1965) was shot to death by an Alabama state trooper. Mr. Jackson, a deacon in his church, was trying to protect his mother from being beaten up. This incident, combined with the institution of segregation and roadblocks placed to make sure people of color could not register to vote, boiled over. Dr. Martin Luther King, Jr. (1929-1968) and his organization the Souther Christian Leadership Conference, together with the Student Nonviolent Coordinating Committee organized a march from Selma to Montgomery, Alabama, the state capital 50 miles away.

But on their way out of town they were stopped at the Edmund Pettus Bridge and attacked by law enforcement. It’s worth noting that the bridge was named for a real person. Edmund Pettus (1821-1907) was a Confederate General and U.S. Senator, but is most well known for his time as a Grand Dragon of the Ku Klux Klan. The bridge was completed in 1940.

National reporting of the that event, often called “Blood Sunday” shocked the nation and led to the passage of the Voting Rights Act of 1965 that legislated equal rights for people of all races.

So 50 years later how are we doing? On one hand very well. Nowhere in this country can you deny someone the ability to register to vote because of his or her race. Neither can you refuse to do business with someone on this basis. Our schools and neighborhoods can’t refuse admission to anyone and we even have an African American President.

But there is still work to do. A poll taken in January shows that 34% of Republicans believe our President isn’t really an American.

An article in today’s Los Angeles Times describes how two police officers and a court clerk lost their jobs over emails. This takes place in Ferguson, Missouri, a town that doesn’t need any more bad news. One email compared President Obama to a chimpanzee; another stated that he wouldn’t be in office for very long because a black man can’t hold a job. Finally one email reported that a black woman was paid to have an abortion as an anti crime measure.

In Selma the famous bridge is still named after the Grand Dragon of the KKK. And if that weren’t enough, in 2000 the city paid for a statue of Nathan Bedford Forrest (1821-1877), one of the founders of the KKK.

My thoughts and prayers are still for Mr. Jackson. You can see a tribute to him here.

The Justice Chronicles, Volume 18: The Senate Intelligence Report on the CIA's Torture Program Shows That the Nuremberg Defense is Alive and Well

Earlier this week the Senate Select Committee on Intelligence released a report on the CIA’s detention and interrogation program. After the events of 9/11 the CIA began, with the approval of President Bush, to gather intelligence that would allow us to find, capture, and prosecute those responsible.

Virtually everyone in the country, and indeed the world, found this appropriate. Violence should always be answered with justice. But early on it became clear that while we all agree on the goal, the Bush administration saw this as an opportunity to suspend the Constitution and ignore long held prohibitions on torture.

Over the next several years we learned about Abu Ghraib, waterboarding, Extraordinary Rendition and a host of other terms. Many of us (who wanted justice for 9/11 as much as anyone) believed that the Bush administration made unwise and illegal decisions under the guise of national security. Unfortunately the administration was clear: anyone who disagrees with us is unpatriotic and secretly hopes for the destruction of the United States.

Time and again they claimed that “enhanced interrogation” of “the worst of the worst” led them to intelligence that saved thousands of lives. Many of us were suspicious or doubtful but in the absence of information (that they refused to release) it was hard to prove.

It isn’t any longer. According to an article in Vox, the Senate Select Committee on Intelligence decided to launch an investigation in March of 2009. To be fair this isn’t a coincidence: it came two months after the inauguration of President Obama. Then again many of us voted for President Obama hoping that he would stop the abuses of the Bush administration. In any case when they began their investigation it became clear that they couldn’t interview anyone from the CIA because the Department of Justice was considering criminal prosecution of those involved. Nobody from the CIA would testify out of a well placed fear that any testimony could be used against them in a criminal trial. While the Justice Department decided in 2010 not to prosecute anyone, it gave the Republican members of the committee the cover they needed to stop cooperating with the investigation and distance themselves from any findings. They are now portraying this investigation and report as one sided and partisan even though they abandoned their chance to affect it.

The Democrats on the committee continued their work and published the results here. It’s pretty devastating.

As Americans we need to ask two questions: (1) Is torture permissible?, and (2) Does it work?

As to the first question, I answer “no.” Torture is ultimately about convincing another human that he isn’t human. Torture means telling someone that he isn’t of any value outside of his ability to provide information that is valuable to the enemy. When our Vietnam Veterans spoke of being tortured they all knew that they were being coerced to give information that would injure their country in exchange for better treatment. And they took solace in the fact that the United States didn’t torture Vietnamese prisoners.

As to the second question, that answer is clearly “no.” The report is clear that any information gained was already known from another source or was gained from the prisoner before the torture began. Simply put, all the torture gave us nothing.

And yet the previous administration continues to push back against the facts. Former Vice President Dick Cheney stated on Meet the Press that he would do it again. He claimed it was justified because the Justice Department ruled those tactics permissible.

In the final word this is what troubles me most. The Bush administrated claims to rely on the opinion of the Justice Department even though they were officials Bush appointed. Everyone, from the president on down to the torturers, claimed to be following orders. This sends chills down my spine because it reminds me of the Nuremberg Defense. After World War II the surviving leaders of the Nazi party were put on trial for war crimes. They defended their actions by saying that they were “just following orders” and were not responsible for their actions. The court ruled this defense unacceptable: the defendants had a moral and legal responsibility to refuse to carry our orders that were clearly illegal.

I wish that was more widespread here. Unfortunately there was one man who stood up and called out the torture for what it was: John Kiriakou. He is now in federal prison. His inmate number is 79637-083. Had other shown his courage he might not be there and we would be a country that better lived up to its values.

The Justice Chronicles, Volume 17: Governor Brownback, We Warned You

I’m upset that this isn’t a bigger story, but the standing Governor Sam Brownback of Kansas is in the political fight of his life. This is news because he is a Republican.

Remember this is Kansas. The state that has declared war on teaching evolution.

Four years ago Sam was elected Kansas’ governor in a landslide after a 14 year career in the U.S. Senate. Sam is a strong believer in “supply side economics” or what many of us call “trickle down economics”. Basically this economic theory claims that if we cut income taxes, especially to the richest among of us, that will stimulate the economy. The people who get to keep more of their money will invest it. Ordinary people spend more money. Small businesses, who benefit from this increase in spending, will expand and hire more workers. The money lost on the tax cuts will be offset by more money in income taxes by the people who are hired and the sales taxes paid by the people who spend more.

The best part of this model is that it both looks good and feels good. Who doesn’t want to raise revenue by cutting taxes? Here’s the problem: it doesn’t work. It’s like all the “eat whatever you want and lose weight” diets.

Four years ago Sam was elected and he promised “an experiment.” OK, I have to ask this: someone who has declared war on science is conducting an experiment? In any case he promised to cut state income taxes on small businesses and wealthy individuals and he did. Small business taxes were cut to 0% (that’s right: no taxes) and the highest individual tax bracket was cut by 24% (you can see this here). He promised that while state revenue may take an immediate hit, it will be soon made up by people and businesses who move to Kansas to take advantage of this experiment.

Did it work? No. The NPR story provides an excellent outline of what happened, but basically this is what happened: small businesses benefitted because they didn’t pay taxes but they didn’t expand because there was no increase in business. NPR spoke with Alex Harb, who owns a computer store in Wichita. He spoke about how his tax cut allowed him to purchase more products for his store, but this has not led to an increase in business. Because of this he has not opened new stores or hired more employees. He has not become a job creator.

Is there a downside? Amazingly the supply side/trickle down guys don’t talk about this. Kansas anticipated a drop of $300 million in revenue while the tax cuts kicked in. Alas, they saw a drop of $600 million with no end in sight. If you are wealthy Kansan or a small business owner you have more money in your pocket. But if you work for the state you’re screwed.

The town of Marquette, Kansas was so devastated by the tax cuts that they had to close their last remaining school. You can read this on the Topeka Capital-Journal website. Amazingly the loss of jobs by the school district wasn’t expected by Sam.

So how has the state done? Sam promised that his “experiment” would show that Kansas’ economy would outpace the economies of neighboring states. Has it?

No. Employment in Kansas has grown by about two percent in Kansas, which sounds fine until you recognize that, according to the NPR article, Kansas has fallen behind the national average and three of the four states that border Kansas (and they all have higher tax rates).

I found this at the web page for the Joint Economic Committee of the U.S. Senate. They track several trends, and I looked at private sector job growth since February of 2010. Kansas and its neighbors (Missouri, Oklahoma, Colorado, and Nebraska) showed these results:

  • Colorado: 12.8%
  • Oklahoma: 10.8%
  • Kansas: 6.8%
  • Nebraska: 6.1%
  • Missouri: .8%

According to this Kansas is in the middle of the pack. That’s fine except Sam promised they would leave their neighbors in the dust. Clearly he hasn’t.

The best part of this story for me is the loyalty Sam expected from his fellow Republicans. He should have recognized Republican loyalty is a synonym for jumbo shrimp. Given the opportunity they headed for safety. This story shows how 100 prominent Republicans are endorsing his Democrat opponent Paul Davis. Do you think these Republicans endorsed Davis out of principle? Neither do I. They made a political decision that their future lies in abandoning Sam after cheering him on.

Sam may win or lose, but if he wins, the people of Kansas lose.

The Justice Chronicles Volume 16: Are We Tipping On Marriage Equality?

When we see a shift in public opinion about something we sometimes talk about a “tipping point,” that is, a time where it appears that the momentum has shifted and what was once a minority opinion has now become the majority.

It’s hard to remember this, but just a few years ago this was thought impossible. In 1996, 18 years ago, President Clinton signed the Defense of Marriage Act, or DOMA. It mandated that the federal government not recognize any marriage except between one man and one woman.

Fifteen years ago, in 1999, California led the country in issuing domestic partner licenses; it provided some of the benefits of marriage. Other states followed.

Massachusetts, in 2004, became the first state to allow gay couples to marry. But because of DOMA these married couples could not file joint income tax returns, or benefit from each others’ social security or other benefits. There had been a residency requirement (that you had to live in Massachusetts or plan to live there). This was a 1913 law and was intended to prevent Southern interracial couples from coming to Massachusetts to get married. It was repealed in 2008.

Also in 2008 the California Supreme Court ruled that the state could not ban gay marriage under the rules of the state constitution. Almost immediately there were calls to amend the California constitution to prevent marriage equality. Later that year Proposition 8 amended the constitution, though the state upheld the marriages that were performed between June 16th and November 4th.

In 2010 the District Court of Northern California ruled that Proposition 8 was unconstitutional (even though it was an amendment to the constitution). In 2012 the U.S. Ninth Circuit upheld the ruling; it was appealed to the Supreme Court but the Supreme Court ruled against them in 2013. Ever since then marriage equality has been legal in California.

There is much more to this and I encourage everyone to read the entire timeline at here.

The 50 states are divided into 11 circuits: you can view the map at here.

The 4th, 7th, 9th, and 10th circuits have all ruled in favor of marriage equality. In a surprise to many, the Supreme Court refused to hear any these appeals.

It’s a bit of a disappointment to those of us who favor marriage equality; we were hoping for the equivalent of Loving v. Virginia when the Court ruled that bans on interracial marriages were unconstitutional.

That said, it’s a devastating blow to those who oppose marriage equality. It appears that as of today Virginia, Indiana, Wisconsin, Oklahoma, Colorado, and Utah will start issuing marriage licenses to gay couples. Because they belong to the 4th, 7th, 9th, and 10th circuits Wyoming, Kansas, West Virginia, North Carolina, and South Carolina will soon follow.

The Supreme Court could still take cases from the other circuits (the 5th circuit is looking at this) but I think this sends a clear message to the other circuits that the Supreme Court will rule in favor of marriage equality.

It appears that homophobia is the latest casualty in the march for justice.

The Justice Chronicles Volume 15: Burwell v. Hobby Lobby: This Is Going To Cost Us

The end of June is always an interesting time for me because I get to read a small mountain of Supreme Court opinions. I’ve generally found these opinions easy to read and it gives me a leg up on those who listen to 30 seconds of a news story on the opinion.

Far and away the opinion that has interested me the most was Burwell v. Hobby Lobby Inc.. Here is my (brief) analysis: According to the terms of the Affordable Care Act, if you are an employer you are required to provide health care to your employees (you can get tax credits if you employ only a few people). As part of this you have to provide birth control.

Hobby Lobby and a few other privately owned companies objected because they oppose abortion and feel that certain forms of birth control actually abort a fetus after conception. They filed suit against the Department of Health and Human Services and the court agreed with Hobby Lobby.

Justice Samuel Alito wrote for the 5-4 majority. He argued that if a company is privately owned by a small number of owners and they all agree that a law (in this case the Affordable Care Act) violates their core values, they are not required to violate those values. Much of this was based on the Religious Freedom and Restoration Act.

Justice Ruth Bader Ginsburg wrote the dissent. She argued that this will open a door to much greater problems. If we allow these companies to exempt themselves from laws that violate their beliefs, where do we end? What if another company finds all forms of birth control? Or a company whose beliefs on homosexuality prevent them from employing gays or lesbians?

I find Justice Ginsberg’s arguements compelling. To the extent that government has no business deciding which relgious beliefs are appropriate, we rely on people of those faiths to determine what they find offensive. And while mainstream America supports gay rights and birth control, good people of different faiths oppose them. If you are an employee of a small, privately held company, you are essentially a hostage of their beliefs even if they are not your own.

I read the opinion (I downloaded it for free on my iPad) and see a disconnect with what I’ve been reading in other outlets. The most troublind disconnect I’ve found is the impression given that these will only apply to small companies. But the opinion applies to companies with only a few owners, not employees. For example, Hobby Lobby is owned by one family, but they employ 16,000 people. Koch Industries employ 60,000. Simply put, as long as these companies don’t go public they can subject their employees to anything they want.

This wasn’t prominent in the decision, but I think this is an important issues: while Hobby Lobby and other companies are privately held, they are also incorporated. This allows the family financial protection if they go bankrupt; the creditors can only go after assets in the company and not personal assets. It seems to me, though, that these companies are trying to have it both ways. If they want protection for themselves, shouldn’t there be some protection for their employees? If these families see their companies as an extension of their own values, shouldn’t they then be compelled to “go all in” and not protect themselves?

I wonder how long it will take for the Court to see that they’ve opened a bad door.

The Justice Chronicles Volume 14, The Money Chronicles Volume 10: Happy Birthday Federal Reserve

Hallmark missed this, but yesterday was the 100th anniversary of the founding of the Federal Reserve, sometimes abbreviated as the Fed. The Federal Reserve is a confederation of 12 banks located around the country, and they are “the banks of last resort.” In other words, during times when the economy is in recession or doing poorly, banks can borrow money from the Federal Reserve to stay solvent.

This didn’t come out of nowhere. There’s an excellent article at NPR’s Planet Money blog. The article begins with the San Francisco Earthquake of 1906. Insurance companies in England were paying huge claims and so much money was leaving English banks that they clamped down the money flow to American banks. This led to some American banks failing, or not being able to pay their bills. Since there was no FDIC or bank insurance, any money deposited in those banks was lost.

If this wasn’t bad enough, people who had their money in safe banks began to panic and tried to withdraw all their money. This led to bank runs, and eventually to the Panic of 1907. The federal government had no power to do anything, and the panic was ended only when J.P. Morgan gathered other wealthy bankers and put up the money to keep the American economy going.

Senator Nelson Aldrich (R-RI) saw this and realized that panics were become too frequent and we could not depend on the wealthiest people to bail out the entire country. He introduced legislation that year to create the Federal Reserve. It took a while to pass both houses of Congress, but it did and on December 23, 1913 President Wilson signed it into law.

In addition to being the bank of last resort for troubled banks, the Fed also set the interest rate at which they will lend, and this sets the standard for the interest rate banks lend to other banks. During times of inflation the Fed will increase the interest rate to “tighten up” the money supply. During times of recession (as happened in 2008) they will lower interest rates to encourage borrowing.

There are those who oppose the Fed and they do this for two reason. First, they say that the board of governors (who govern the Fed) have too much power. Since they essentially set interest rates for much of the money flow in the country they control too much of what happens in the economy. They also believe that since banks know they will be bailed out, they can be irresponsible. If the banks keep all their profits and don’t have to worry about their losses, they have no reason to be careful.

I understand both of these arguments but in the final analysis I think we’re better off giving the government the flexibility to guide the economy.

The Justice Chronicles Volume 13: Nelson Mandela (1918-2013)

His death was supposed to be a footnote. It was supposed to be a local story, buried in the inside pages of the paper: Imprisoned Terrorist Nelson Mandela dies in Prison.

It didn’t happen that way. In the days since his death he has made worldwide headlines. Frankly, it was time. He was 95 years old and had been in critical condition since developing a lung infection nearly 6 months ago. He was home but his home was transformed into an intensive care unit.

Mr. Mandela’s life story is largely public and known. After becoming a lawyer in apartheid South Africa he joined the African National Congress. He first embraced the idea of nonviolence in battling apartheid, but later abandoned that and co founded a militant wing called Spear of the Nation. Because of his actions he needed to go underground, but was found and arrested in 1962. Tried and convicted of trying to overthrow the government, he expected to be sentenced to death but instead was sentenced to life in prison.

For the next 27 years he languished in prison. By the 1970s and 1980s he became the public face of the injustice of apartheid, even though there were no pictures taken of him since 1963. His release from prison in 1990 seemed a miracle.

But for me, his release wasn’t the miracle. It’s what happened to him while in prison and how he sculpted post apartheid South Africa. While nobody knew in 1990 how he would spend the rest of his life, many feared he would take the opportunity to exact revenge on those who harmed him. They feared he would respond to injustice with injustice of his own.

He didn’t. After his election as President of South Africa in 1994 he founded the Truth and Reconciliation Committee. He knew that truth must come before reconciliation, and that reconciliation is the only path to true peace. As I think about this, I can’t help but remember Archbishop Tutu’s belief about forgiveness:

Forgiving is not forgetting; its actually remembering–remembering and not using your right to hit back. Its a second chance for a new beginning. And the remembering part is particularly important. Especially if you don’t want to repeat what happened.

His time in prison changed him from someone who advocated violent resistance to someone who saw that revenge only continues the cycle of violence. He loved his nation and that love healed him of his anger toward his captors.

We are all better for it. Much like Gandhi and Martin Luther King before him, he taught us the ferocious power of love and forgiveness. I’m grateful that Mr. Mandela is the only one of the three to not die violently.

For those of us who live on, our mandate is clear: we are called not only to stop tolerating injustice, we are called to forgive those who benefited from it. Once those who create or benefit from injustice are defeated, we must not exact revenge on them. Their sin must be called out, but they must be forgiven. Only then will there be peace.