Sebelius v. Hobby Lobby Stores, Part I: Background and Standards of Law

Burt Likko

Pseudonymous Portlander. Pursuer of happiness. Bon vivant. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. There's a Twitter account at @burtlikko, but not used for posting on the general feed anymore. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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25 Responses

  1. Snarky McSnarkSnark says:

    Fuck ’em.

    The corporation is a grant from the state that provides very specific benefits (like liability limitation, separate taxing, and, now, rights heretofore reserved for natural “persons.”)

    In return, they are asked to conform to several aspects of public policy. If they want to assert religious rights, they can become a sole proprietorship.

    (Who knew that I was capable of such sophisticated legal reasoning?)Report

    • However this gets resolved, I don’t think it really needs to involve an attitude of Fuck ’em toward anyone. I don’t really feel like we can grant nearly any of Hobby’s Lobby’s claims here, but that’s not at all because my attitude toward them is Fuck ’em. I understand why they’re making just about every one of their requests, I just think that in nearly each case the line has to be drawn well in front of granting them.Report

  2. Saul DeGraw says:

    This is a good write up of mock Supreme Court opinion. I will have more to say substantively when the substance is addressed.

    Good job so far.Report

  3. zic says:

    Okay, the clouds have rolled in, and with it, the obligatory drop in my cognitive abilities. So I need some plain English here.

    The third portion of the opinion (after the C) these are the precedents shaping the decision?

    My interpretations:

    1. The Free Exercise Clause interpreted to mean that it does not allow an individual to subvert other law (so no human sacrifice, sorry gang);

    2. Davis v. Michigan suggests the contraceptive mandate must be read within context of the nation’s overall regulatory;

    3. Gustafson v. Alloyd suggests the mandate should be considered within contest of PPACA;

    4. United States v. Estate of Romani, points 2 and 3 may affect one another, particularly when Congress has recently acted on a point;

    5. Cf. MCI Telecommunications Corp. v. American Telephone & Telegraph Co. and FDA v. Brown & Williamson Tobacco Corp — The opinion should reflect Congresses intent on administering the law;

    Do my plain English approximations get close? The RFRA question would get settled along the standards of these precedents?Report

    • zic in reply to zic says:

      I have a question about the previous SCOTUS decision on PPACA that springs from Gustafson v. Alloyd.

      The overall regulatory goal of ACA was universal coverage — no free riders on the system, because free riders ultimately drive costs up. ACA included a mandate that all states expand Medicaid expansion to include people otherwise unable to purchase insurance, the the court overruled this; yet it seems to have upset the applecart with regards to Gustafson v. Alloyd.

      (I ask because yesterday, I volunteered at the local food pantry. We have several people who are still uninsured because our governor continues to veto any expansion of Medicaid.)Report

  4. J@m3z Aitch says:

    You speak of HL as a privately held corporation. That’s true, of course, but it’s also been identified as a closely held corporation. Does the choice of privately held over closely held provide a hint as to where this decision is going, or am I reading too much into the choice of terms?Report

    • Saul DeGraw in reply to J@m3z Aitch says:

      I use the terms synonymously. This might not be correct though.Report

      • J@m3z Aitch in reply to Saul DeGraw says:

        I think closely held is a subset of privately owned. But the two terms are close enough that they can probably be used interchangeably in general discussion. But since a Supreme Court opinion isn’t general discussion, I’m curious as to whether Burt’s using the terms as you do, or whether I’m brilliant enough to have caught his subtle hint. (Sadly, probably not the latter.)Report

      • Saul DeGraw in reply to Saul DeGraw says:

        IIRC the terms were used synonymously in my Corps class and bar review.Report

      • Mike Schilling in reply to Saul DeGraw says:

        I think closely held is a subset of privately owned. But the two terms are close enough […]

        Ah, but are they private enough?Report

    • zic in reply to J@m3z Aitch says:

      My understanding is that they are both privately owned; meaning shares are not publicly traded on a registered exchange, but a closely held company can issue (and sell) shares of stock that cannot be sold, shareholders of a privately held company can sell their shares in a private sale.

      Other shareholders in closely-held companies have to be willing to purchase stock back; though I’m uncertain about how this is legally structured.Report

    • LeeEsq in reply to J@m3z Aitch says:

      At least in New York corp law, the terms mean the same thing and are used interchangeably.Report

    • Barry in reply to J@m3z Aitch says:

      I believe that it does; if nothing else, because incorporation grants a legal separation between owners and the corporation. If I own 51% of the voting stock of a corporation, I can do a lot with it (depending on how control is structured), but it remains a legally separate entity.Report

  5. Road Scholar says:

    No substantive comment. Just wanted to say I learn a great deal from these posts. It’s like a free online education.Report

  6. Don Zeko says:

    I am now trying to read the tea leaves of this post to see what the phrasing of the summary of facts indicates about how the non-real court will rule on the issue. I think it’s time to go to bed.Report

    • Burt Likko in reply to Don Zeko says:

      Get your predictions in fast. I just gave the remaining posts a final spit polish (fixing some trivial grammar issues, mainly) and they’re teed up to publish tomorrow. I’ll be asleep when Part II is announced, and in court when Part III is. Fortunately, or maybe unfortunately, when sitting on the bench, judges generally let their opinions do the talking, as to substantive issues.Report

  7. @burt-likko

    Your last paragraph addressed a question I had about the potential conflict between the ACA and the RFRA, but I’m still not totally clear. At the end, you note that the judges must “seek reconciliation and harmonization of the Contraception Mandate with RFRA to the maximum extent possible, and only to find a conflict when it absolutely cannot be avoided.”

    This makes total sense, but what happens if they cannot avoid finding a conflict?

    In Canada’s tradition (IIRC), there is the principle of Supremacy of Parliament (or something like that). It means that if a law is passed that contradicts a previous law, the new law is upheld and the old law is, essentially, null and void (roughly speaking). It’s just common sense, of course. A new session of Parliament can’t be held hostage by the laws of a previous session of Parliament; that wouldn’t actually be democracy.

    So in this case, HL is claiming that the ACA (or the “contraception mandate” part of the ACA) violates the RFRA. But if it does, so what? The RFRA is just another piece of legislation passed by a previous congress/administration, is it not? Can’t a new congress/administration enact new laws? Would they have to make a little asterisk at the end of the ACA saying, “this law also modifies the RFRA such that the RFRA is totes cool with the contraception mandate”?

    Clarification on what happens if a conflict is found between the RFRA and the ACA would be much appreciated.Report

    • Watch for the majority opinions in parts III and IV, scheduled to post at noon and 4:00 pm Eastern time today.Report

      • @burt-likko

        Hey Burt, so I’ve read all the opinions, and I’m still not totally clear on the application of US law when two pieces of legislation conflict. So, I’m going to try to break this down to find out where I’m misunderstanding:

        1. RFRA is just legislation that was passed and signed into law, correct? By that I mean, it’s not a constitutional amendment and it doesn’t carry any special weight that other laws don’t possess.

        2. The ACA (and the contraception mandate part of it) is also just regular legislation, correct? (I’m not judging the merits of it or the significance, just its status as legislation.)

        3. The Greens allege that the ACA (the contraception mandate part) violates the RFRA, correct?

        4. If both the ACA and the RFRA are “just” legislation (not constitutional amendments or any special type of legislation), why would the RFRA overrule the ACA?

        As mentioned, I’m used to the Canadian system where more recent legislation is assumed to overrule older legislation when there’s a conflict. To me, this is logical, since (theoretically) the legislators know what they’re doing and know that the new legislation they’re passing alters established legislation.

        5. If it is determined that the ACA violates the RFRA and the RFRA is given more weight, couldn’t congress just have included a modification to the RFRA in the ACA (political concerns aside)?Report

      • Burt Likko in reply to Burt Likko says:

        As you know now, I would find they do not conflict at all.

        To the extent the majority found otherwise, the wording of RFRA was that it was intended to create an exception to laws of general applicability when doing so conflicts with an exercise of a genuinely-felt religious belief. That the law of general applicability post-dates RFRA isn’t important.Report

      • Perfect, thanks, Burt!Report