Sebelius v. Hobby Lobby Stores, Parts II and III: Dissenting and Concurring Opinion

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Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.

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  1. Avatar Kim
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    I find your argument compelling, but also troubling. What happens with a stockholder controlled company? Can someone forcibly change the religious nature of a company through a leveraged buyout?

    Is it possible to take one cherished belief that a corporation holds, and crush it irrevocably through the use of money?

    If I understand your argument properly, then the answer is yes.

    Would such a buyout harm its employees, perhaps physically and definitely monetarily, should they disagree with the new ownership? [My example is a person who demands circumcision from all workers has just bought a company. Not everyone at the company is an “at-will” employee].
    Perhaps this is different, because instead of wanting to piecemeal a law, this is a corporation imposing its beliefs on humans.Report

    • Avatar Tim Kowal in reply to Kim
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      Kim — not sure I understand your questions/hypos.

      Also, employees who are not at-will can still leave whenever they want. If the employer terminates them, though, they must have cause.

      Also, though the issue is not raised here, I have always thought the holding of Employment Div. v. Smith could be made more palatable if it distinguished between affirmative and negative conduct. E.g., can ban peyote use, but cannot mandate contraception sincerely believed to be abortifacients. Hobby Lobby presents the easier case: the owners simply want not to be compelled to engage in objectionable conduct. Were they to seek freedom to engage in affirmative conduct others find objectionable, that would be a new layer of analysis.Report

      • Avatar Jim Heffman in reply to Tim Kowal
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        Although, as I pointed out elsewhere, there’s precedent for allowing objectionable activity as a part of religious expression (albeit precedent on an individual level rather than a corporate one.)Report

      • Avatar Tim Kowal in reply to Tim Kowal
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        Jim — Yes, I’m not willing to sign on wholesale to Employment Division even with that distinction. But there is a meaningful difference. Perhaps not on the burden analysis, but on the government interest analysis.Report

      • Avatar Kim in reply to Tim Kowal
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        Tim,
        what concerns me is the allowing of a corporation to “switch its stripes” so to speak. This whole “corporation has a religious belief” is founded on the idea of a belief — well, while I wouldn’t call a corporation hypocritical… if it did change its mind from day to day (or stockholder meeting to stockholder meeting), I’d hardly call it a belief.

        It also seems like we’re setting up “most profitable religion wins” games.Report

      • Avatar Tim Kowal in reply to Tim Kowal
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        It is the owners who owe duties to their conscience. Ownership may change, and thus so may the beliefs of the controlling owners reflected through company policy. If the question is sincerity, that can be directed at the owners themselves — which is nothing new. The only new layer of analysis is to determine whether the corporation and the owners are one and the same for purposes of exercising and protecting conscience. Is the corporation their alter superego? Where it is, I would find the corporation to be the proper party to represent the owners’ beliefs.Report

      • Avatar Barry in reply to Tim Kowal
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        says:

        “Hobby Lobby presents the easier case: the owners simply want not to be compelled to engage in objectionable conduct.”

        This is factually and legally incorrect – the owners of a corporation want the corporation not to be compelled to engage in objectionable conduct (where ‘objectionable conduct’ means ‘something that they were already doing).

        Again and again and again I see people ignoring the fact that the Greens set up Hobby Lobby as a for-profit, limited liability corporation. They had other choices, and chose that status for legal and financial advantages. Their current argument is that they should retain all advantages, but be exempt from things which they disagree with.Report

      • Avatar Murali in reply to Tim Kowal
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        @barry
        The burden that is now being imposed on limited liability companies was not imposed on them when they chose to incorporate as an LLC. Suppose they had chosen to incorporate as a sole proprietorship and the PPACA had instead burdened sole proprietorships instead of LLCs. Would you still say that they chose to incorporate as a sole proprietorship for the various benefits of such an entity but now wish to be excused from the attendant burdens (perhaps in the alternate world where they do so sole proprietorships are exempt from corporate taxes)?

        If you did, are you going to say that engaging in any sort of activity in which the government is marginally involved constitutes acceptance of any future burden the government may choose to impose? Because that’s precisely what you seem to be implying.Report

      • Avatar Brandon Berg in reply to Tim Kowal
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        Sole proprietorships are exempted from corporate taxes now. Their profits are taxed as personal income of the proprietors.Report

      • Avatar Brandon Berg in reply to Tim Kowal
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        Again and again and again I see people ignoring the fact that the Greens set up Hobby Lobby as a for-profit, limited liability corporation.

        It’s not so much as we’re ignoring it as that we don’t see this as the sort of blank check for government control that you do. People shouldn’t have to choose between the right to run a for-profit business and their right not to be compelled to do things they believe are wrong, no matter how silly that belief may be. Many leftists seem to treat running a business as a privilege in exchange for which the government may demand whatever it see fit.

        As for limited liability, I can’t imagine that it’s actually worth all that much to a business like Hobby Lobby. There are essentially two different kinds of liability: loans and torts. The effects of limited liability are priced into loans, so that’s of questionable benefit. If limited liability weren’t built into corporate law, corporations would be able to negotiate it for the same price.

        Limited tort liability may be more relevant for corporations which manufacture drugs and other potentially dangerous goods, but it’s really hard for me to see how a retailer of Hobby Lobby’s size has a nonnegligible chance of being sued into bankruptcy. This may also, to some extent, be a case of government solving a problem it helped create by making it too easy to obtain large judgments against corporations with deep pockets.

        I kind of wonder if it would be worth getting rid of limited liability just to make leftists stop treating it as a justification for all the taxes and regulations they want to impose.Report

  2. Avatar Fnord
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    Your opinion here is full of sweeping rhetoric about the importance of “free exercise of religion. Yet, as was pointed out in part 1, which you joined yourself (despite the comment about Employment Division v. Smith above),

    the Supreme Court determined in Employment Division v. Smith, supra at 879, that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” This remains the Supreme Court’s interpretation of the Free Exercise Clause to this day. RFRA is a statute, not an amendment to the Constitution.

    Do you assert, despite that, that the Green’s First Amendment right to free exercise of religion is implicated in this case?Report

  3. Avatar Cascadian
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    I find it interesting that you use conscience verses sincere belief. I can sign on to this as it is. What I find disturbing is what I perceive as an attempt to keep these kinds of opt outs to big organized religion or to people that have had a long standing belief. If it is open to people exploring religion and thus having very mutable beliefs or opinions or people of unpopular religions like pagans or even those that have whimsical beliefs such as the Pastafarians. Basically if everyone has recourse to cherry picking, bring it on. If this is a construct that can only be used by theists in practice then no way.Report

    • Avatar Jaybird in reply to Cascadian
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      I tend to agree with this. I used to get into arguments at Redstate about Gay Marriage and they discussed the Catholic Church’s teachings about it being a sacrament and whatnot and my response was something like “that’s all well and good, but what about the Unitarians having services in the basement of the YMCA? Can they have Gay Weddings?” and the response tended to be of the form “Pfeh! That’s not a real religion!”

      At which point my head tended to explode because, seriously, from here all y’all are indistinguishable from a bunch of dorks playing D&D. “You can baptise people through sprinkling BUT ONLY ONCE” “No, they have to be baptised in a river as often as they’re inclined to get a +2 bonus to dice rolls.” “No, it’s sprinkling, it’s a +1, and it’s a lifetime of bonus!”

      Seriously. It’s just water. You don’t get a bonus. There are no dice. God does not play with them. He does not throw them where he cannot see them. There isn’t one.

      Now, I’m not going to tell you to stop playing D&D. That’s not my way.

      But my bullshit moral system is just as good (or, at least, no worse) than your bullshit moral system and I am entitled to the same state protections when it comes to “feeling shit strongly”, thank you very much.Report

    • Avatar Tim Kowal in reply to Cascadian
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      The First Amendment and RFRA say religion. I define the word broadly, which is why I cite heavily to conscience. I usually include atheism among religious belief, for instance. Though Madison and Leland’s formulations would not tend to support an atheist’s right to exercise conscience unless the atheist can posit some antecedent duty for which the state cannot answer.Report

  4. Avatar Cascadian
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    If an atheist is burdened by the need for further proof of their conscience and duty to follow it than other citizens then we have a problem.Report

    • Avatar Kim in reply to Cascadian
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      While this is true, I feel that people asserting “new religions” ought to be held to higher standards. (what those are, I’m not sure, but … there should be something to prevent folks from changing their mind etc etc.).

      I’d apply the same thing with atheists. Not saying they have to have a Book of Atheism, but if you’re going to come up with oddball ideas (really out there), you’re going to have to justify them.Report

      • Avatar Cascadian in reply to Kim
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        So different standards depending on what? Catholics get a complete pass while Mormons have to do more explaining and neo pagans need to completely codify and unanimously agree on new tenants? That doesn’t seem fair. No, if were going to include religion in a day and age where religion is fracturing with the rise of the nones, it’s conscience that everyone has access to; no favoring one religion over another regardless of how old or popular it is.Report

    • Avatar Tim Kowal in reply to Cascadian
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      Can you pose a hypothetical? Maybe we can sketch out an analysis.

      I’m not sure where I come out, actually. The knotty part of the analysis will probably be on “sincerely held religious belief.” As I say, I would define that word broadly, but still it must have some limit. We can intuitively understand the nature of conscience in the traditional religious context — again, Madison and Leland articulated it nicely. What is the nature of conscience under atheism? Can it fit within the Madison/Leland formulation? Or would we have to posit a different one?Report

      • Avatar Cascadian in reply to Tim Kowal
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        Much will depend on how much lifting we leave to Madison/Leeland’s use of “God”. If this is presupposing a theistic religion then no. We won’t be able to have a free exercise of theism but nothing else. If we take Madison’s creator to be whatever we take to be out there even if it’s some notion of Karma or Buddistic soup or nothing at all other than our own notion of right and wrong then we can go forward.

        Ultimately, when the mark of the beast comes down it will be justified with these sorts of arguments.Report

      • Avatar Michael Drew in reply to Tim Kowal
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        Conceivably it’s as simple as positing that an atheist happens to have an ethical objection to the same contraceptives that the Greens do, and for the same basic biological reason, but the ethical objection just comes from a secular humanist (which is NOT a religion!) view about the status of the fetus that happens to mirror the view that the Greens take from their religion.

        Obviously, we might not want to use exactly that example because it would get confusing. Also, it wouldn’t produce any case-outcome tension for those arguing for vindicating the Greens’ religious conscience objections the way that a case like smoking peyote apparently did for a guy like Scalia. But that has the upside of being the fairest possible example to use to explicate the difference for those arguing for the religion-based exemption.

        If the Greens were objecting to the same thing but just saying, “Look, this is how we feel. These are our convictions. They’re secular and have nothing to do with any religious beliefs. Deal with it,” should their claims be assessed any differently?Report

      • Avatar Tim Kowal in reply to Tim Kowal
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        Karma or Buddistic soup is something to work with, at least. Sheer materialism does not readily suggest a place for conscience.Report

      • Avatar Cascadian in reply to Tim Kowal
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        I’m not a pure materialist myself. I believe there to be materialists and I suspect they have something that I would recognize as a conscience. There’s are inferior or are to be burdened because?Report

      • Avatar Tim Kowal in reply to Tim Kowal
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        @michael-drew Unmoored from religious beliefs, even broadly defined, “conviction” is a word to conjure with. I’d have had to sign on to my brethren’s parade of horribles, as there would be no limit to the number of laws to be trumped by something so broad as mere “convictions.”Report

      • Avatar Tim Kowal in reply to Tim Kowal
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        @cascadian I can’t evaluate a different definition of conscience until I hear the definition.Report

      • Avatar Tim Kowal in reply to Tim Kowal
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        I don’t intend to be coy, by the way. I’ll give it some thought myself. It just seemed like you had a different meaning of the term at the ready.Report

      • Avatar Jaybird in reply to Tim Kowal
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        How’s this? I totally heard from my dad that he heard from his dad that he heard from his dad that his dad heard a voice.

        Oh, and 14 million people agree with me.Report

  5. Avatar Cascadian
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    says:

    Conscience is one’s interior voice or intuition concerning what is right or wrong. I know that you posit yours as coming from your God. Those that worship other deities or none at all report to have similar experiences though they differ in there source.

    Of course, I’m not going to agree to providing government protection for a limited group. If you don’t want the Pastafarians having access to these arguments, you would be better off not making them for yourself. Bring on the parade.Report

    • Avatar Tim Kowal in reply to Cascadian
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      I’m less concerned with where they come from than to whom the duty is owed. Ancient religions are fairly transparent and it is possible to at least roughly evaluate whether one’s asserted free exercise right has a nexus with their belief system.

      Pastafarianism is, by definition, a set of insincere beliefs.

      It will be difficult for those who do not take religion seriously to take religious rights seriously.Report

      • Avatar Cascadian in reply to Tim Kowal
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        This is why conscience works. Even those that don’t wish to identify as “religious” seem to have the same internal motivations. I shouldn’t have my beliefs burdened because they are not contained within a long standing tradition.

        Even in cases which are clearly not serious in the way you understand serious can have claims. Consider political parties. Just because one wishes to run for the wild moose party or what have you that appear to be insincere from one perspective still have a place, a point, and should be afforded the same access as others.

        The concern is that traditional religions are trying to carve out a protection not available to others. If this is your case, then of course we are never going to agree. If these freedoms and protections are to be extended to all who claim conscience and a duty to abide by it then we can go forward.Report

      • Avatar Jaybird in reply to Tim Kowal
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        It will be difficult for those who do not take religion seriously to take religious rights seriously.

        It depends on whether you spend a whole lot of time explaining away such things as “conscience” on behalf of those who don’t share your untestable assertions.Report

      • Avatar greginak in reply to Tim Kowal
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        “It will be difficult for those who do not take religion seriously to take religious rights seriously.”
        Indeed it will also be difficult for those who do not take womens reproductive health care seriously if they don’t take women’s repro HC and their choices seriously.

        Just to be clear, there have been many many threads here and loud mouth radio personalties and pols where it has been stated that women using BC are less then moral or shouldn’t expect other people to pay for their HC which is very much unlike care for other conditions/medicines or other arguments which suggest womens repro HC is a low priority at best. .Report

      • Avatar Patrick in reply to Tim Kowal
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        It will be difficult for those who do not take religion seriously to take religious rights seriously.

        Tim, I agree with this.

        Pastafarianism is, by definition, a set of insincere beliefs.

        But I think you’re misunderstanding the framework of Pastafarianism.

        It is (I believe, anyway, not a practitioner myself) entirely based upon a truly sincere belief that religious beliefs are hogwash… in fact, I would be unsurprised if in many cases, Pastafarians would go a step further and argue that religious beliefs are in fact detrimental.

        I don’t necessarily know that I agree with either of those beliefs, either, but I don’t doubt that they’re sincere.Report

      • Avatar Tim Kowal in reply to Tim Kowal
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        @patrick That’s the group with the Flying Spaghetti Monster, right? I understand they assert such things for the purpose of poking fun at religion. The joke’s on them, since I’ve never seen a Richard Dawkins myself and do not subscribe to the Dawkins-of-the-gap theory.

        At any rate, I’m sure its “practitioners,” if they may be called that, have sincere beliefs. But I doubt they flow from Pastafarianism. I don’t think it is seriously argued by anyone that Pastafarianism comprises a belief system that helps explain life and the world and the other Big Questions. It’s a riff on a punchline.Report

      • Avatar Patrick in reply to Tim Kowal
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        Oh, I wouldn’t claim that a Pastafarian could legitimately go for a religious exemption to something with a straight face, myself.Report

      • Avatar Burt Likko in reply to Tim Kowal
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        Lack of faith does not mean an inability to take faith seriously. I subscribe to the Phil Plait school of atheism — it is neither persuasive nor productive to mock people whose belief structures are different from your own.

        As a lawyer, I cannot claim that the Establishment Clause is important and should be vigorously enforced without also claiming that the Free Exercise clause is important and should also be vigorously enforced. Now, unlike Tim or Mark or Dave, I don’t think the Greens’ Free Exercise rights ever come in to play in this scenario, but that doesn’t mean I think those rights are unimportant.

        Conscience and morality aren’t enough here, because the faithful insist (and I’m in no position to say they are wrong) that there’s more to it than that. If you walk a walk of faith, that’s participating in something that I get to respect and not mock, whether I can participate in it or not.Report

      • Avatar zic in reply to Tim Kowal
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        Just to be clear: Dawkins is not a fill-in-the-blanks representative for Atheists any more than you or the Greens are token Christians for all discussion amongst atheists. The Greens do believe, for instance, that some forms of contraception are moral, something I’d presume you disagree with since you are a Catholic. So that you’ve seen Dawkins really doesn’t have much bearing on any of this, and is of no merit whatsoever. You’re Dawkins quip are suggests that you think your morals are somehow more worth while than an atheists, because Dawkins, you know. It’s a perversion of the 1st; the state endorsing all religion over non-belief. That is equally troublesome.Report

      • Avatar Stillwater in reply to Tim Kowal
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        I’m with Burt on this. Personally speaking, I think the idea that someone died for my sins and etc to be absurd, but that doesn’t mean I view folks who do believe it with derision or scorn. I just think they’re wrong. Likewise, I think they’re wrong when they argue that the contraception mandate is an infringement of religious liberty or conscience or etc. At that point we just disagree, yes? The problem arises when I can’t convince them that they’re wrong and they can’t convince me that they’re right. That’s an impasse. What would settle the matter? Certainly not an appeal to “taking religious rights seriously”, it seems to me, since that just appears to beg the very question at issue.Report

      • Avatar Cascadian in reply to Tim Kowal
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        I’m a libertine pagan. I believe, amongst other things, that there is spiritual value to spending quality time in the mountains, good beer and wine, and of course sex.

        Pastafarians, Raliens, Scientoligists, Mormons, Snake handling or not Southern Bapbtist, Catholic and Orthodox, seem bat shit crazy from my view. I’d be hard pressed to decide a Pastafarian was less serious than an Easter Catholic. If I don’t feel comfortable distinguishing I’m not going to want the government to try.Report

      • Avatar Barry in reply to Tim Kowal
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        “I’m less concerned with where they come from than to whom the duty is owed. Ancient religions are fairly transparent and it is possible to at least roughly evaluate whether one’s asserted free exercise right has a nexus with their belief system. ”

        First, this is simply not true. We can start with the Mormon religion, which went from a rather non-prejudiced view under Smith to a rather nasty view of blacks under Brigham Young, to a change in the 1970’s. All by divine decree, of course.

        The Catholic Church has had radical changes in the last century or so in how it doctrinally views human rights, war and religious freedom.

        On the Slactivist blog, there are some links which show quite conclusively that the Southern Baptist Conference had no problem with abortion, and that white, right-wing evangelicals in general didn’t care much about it, until Carter revoked the tax exemptions for segregation academies.

        If you look at Birtherism among white, right-wing evangelicals, you could make a good case for ‘Thou shalt not lie’ no longer being a part of their doctrine.

        Second, you are explicitly treating religions differently, based on their age.Report

      • Avatar Kim in reply to Tim Kowal
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        Barry,
        The mormons are a cult. A relatively large, stable cult, but still a cult.Report

  6. Avatar Mike Schilling
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    So moral beliefs that stem from religion are privileged over moral beliefs that do not? I can’t say I find that much better than “moral beliefs that stem from the true religion are privileged over moral beliefs stem from false ones”.Report

  7. Avatar zic
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    The right of conscience “is unalienable,” wrote James Madison, “because what is here a right towards men, is a duty towards the Creator.” John Leland, an abolitionist minister and Madison supporter, wrote in the months before the First Amendment’s adoption:

    “Every man must give account of himself to God, and therefore every man ought to be at liberty to serve God in a way that he can best reconcile to his conscience. If government can answer for individuals at the day of judgment, let men be controlled by it in religious matters; otherwise, let men be free.”

    Let’s just pretend for a minute that ‘men’ included ‘women’ in this construction, shall we? With that, it’s obvious that what HL is asking is to have the Green’s conscience make these decisions for their employees; as if these women don’t have a right to make these decisions on their own, based on their religious and moral beliefs. You lay the burden for these choices at the feet of the employer, some sort of bizarre father-figure standing as the voice of God.

    And lets not forget; HL has approximately 10,000 full-time employees who are women, who will have their right to make a conscientious and moral decision about their lives and families usurped by HL.

    I celebrate that women have the potential of being freed from the tyranny of their biology due to preventive contraceptive care. These women deserve the freedom to make their own moral choices based on their beliefs and morals, their family’s needs, and their health. Hobby Lobby is asking for a moral right that belongs to their employees. That is not freedom.Report

    • Avatar Tim Kowal in reply to zic
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      What if Hobby Lobby was David Green’s sole proprietorship. Could he exercise his conscience then?

      “it’s obvious that what HL is asking is to have the Green’s conscience make these decisions for their employees”

      I don’t think this is true at all. As far as I can tell, there is nothing in the law to prevent the government from mandating that Hobby Lobby pay the cash value of the objectionable drugs in lieu of the drugs themselves. Or as Mark’s opinion in Part IV explains, other less burdensome ways of achieving the government’s ends.

      We can agree to disagree on the extent to which health care is a moral right, let alone whether the particular objected to contraceptives are. But this case does not dispute it. It merely asks whether the instrumentality the government has chosen to dispense these drugs impinges on other rights and whether it is justified in doing so. We think it does impinge and does so unjustifiably.Report

      • Avatar zic in reply to Tim Kowal
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        This response sort of denies the very reason behind the inclusion of the contraceptive mandate in the rule making process. It’s okay of some some other agency makes it happen. So women’s health care is the same, only different?

        The reason for the contraceptive mandate is because women were systematically denies access to preventive health care that is unique to their biology.

        Mr. Green’s rights stop at the door of their bodies and their health care needs. Those women own that moral decision, not Mr. Green.Report

      • Avatar Patrick in reply to Tim Kowal
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        What if Hobby Lobby was David Green’s sole proprietorship. Could he exercise his conscience then?

        I will weigh in on this aspect.

        Yes, I would then in that case come down on the side of the plaintiff, provided he made the affirmative case that this was an undue burden (one which I’m not convinced of, myself).

        As far as I can tell, there is nothing in the law to prevent the government from mandating that Hobby Lobby pay the cash value of the objectionable drugs in lieu of the drugs themselves.

        Wait, isn’t that already the case, effectively? Hobby Lobby can refuse to pay for health care coverage entirely, pay the vigorish tax, and call it a day?

        (IIRC part of the dicey bit of their argument is that they feel compelled to offer insurance, just not the kind of insurance mandated by PPACA, which is part of what makes the burden undue)Report

      • Avatar Tim Kowal in reply to Tim Kowal
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        @patrick The tax/penalty would be in lieu of offering any coverage, in my understanding. It’s an all-or-nothing proposition the government has imposed. My narrow point is that they could conceivably exempt Hobby Lobby from offering the certain drugs and instead cut the employees a check for the difference. That may not be feasible administratively or due to the mechanics of health insurance, but I think the law would be fine with it. Hobby Lobby would be paying the same either way, as opposed to the tax/penalty, which would cost them a substantial sum and also leave them with the proposition of needing to make up the bite taken out of their employees’ total compensation package.Report

      • Avatar Michael Drew in reply to Tim Kowal
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        As far as I can tell, there is nothing in the law to prevent the government from mandating that Hobby Lobby pay the cash value of the objectionable drugs in lieu of the drugs themselves.

        How does this work realistically, though? What’s the baseline?

        This is why I tend to think that the means here are reasonably close to least restrictive. Or at least I don’t understand how this laternative is supposed to work.

        With the regulation saying contraception must not have a co-pay, at least you know working women aren’t having to shell out for BC, whatever else happens to their wage (and how likely is it really that their wages fall so much exactly as a result of this regulation that it offsets completely or is a net loss for them?).

        But how do you mandate a *cash* payment for an item? Isn’t that just a line item on a paystub? And isn’t that meaningless when it comes to seeing that women get a benefit? You can’t govern the counterfactual of how much they’d be getting paid without the line item (and, yes, that’s the true for the insurance regulation as well, but at least there you know they don’t have to deal with a copay; they’re not having to reach into their pocket to pay for the medication). And why wouldn’t employers object to a required line item for contraception just as they’d object to coverage for contraception?

        Also, unless you mandate it only for women (and even then it’s not targeted to women who need contraceptives), you’re not accomplishing one of the aims of the law, which is to ease the inequality in health care costs between men and women. One of the aims to the law (however much we oppose this) is to promote the sharing of health care costs through coverage that is affordable to everyone.

        Including contraceptives in the list of fully covered preventive care helps advance this and achieves the aim of the law with respect that particular cost in a quite direct and targeted way. It’s not clear to me that there are less restrictive means available that achieve the same aim. It’s certainly not clear to me that a cash offset does.Report

    • Avatar Tim Kowal in reply to zic
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      They may own that decision, but they do not own the decision to facilitate it. That decision is the Greens’, and it implicates their duties of conscience.Report

      • Avatar Patrick in reply to Tim Kowal
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        Again:

        It’s unclear to me how “we employ people who might get abortions and pay them cash money that they can use to get an abortion” isn’t a problem for their conscience but “we employ people who might get the morning-after pill and provide them subsidized access to health insurance that includes as part of its coverage access to the morning-after pill” is a problem for their conscience.

        If facilitating access to morally reprehensible activities is indeed a strongly held moral problem for anyone, I’d say that your first step is to not hire people whose behavior you find potentially morally repugnant.

        And hey, they have that right.

        Because otherwise, it’s really, really hard for me not to default to the opinion that you’re just paying lip service to your supposedly strongly held moral beliefs. You know, you’ll go right up to the point where it’s inconvenient for you to actually bear the costs of your strongly held moral beliefs, and then not so much.

        Whatever happened to being an honest warrior for the faith?Report

      • Avatar Tim Kowal in reply to Tim Kowal
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        says:

        “In but not of” is a well known Christian dichotomy. It is not part of Christianity to retreat from public life to live in belivers-only communes. Most would regard it as a dereliction of their duty, which is to preach the gospel to the world. Living “in” the world is not a concession but an obligation. The Greens regard the carrying on of a wholesome productive business to be an outgrowth of their faith. It does not require or even suggest they hire only non-Christians, or put strings on what they may do with their paychecks.Report

      • Avatar Patrick in reply to Tim Kowal
        Ignored
        says:

        It does not require or even suggest they hire only non-Christians, or put strings on what they may do with their paychecks.

        Then why does it require them to put strings on what they may or may not access through their health coverage?Report

      • Avatar Patrick in reply to Tim Kowal
        Ignored
        says:

        It’s not like the government is mandating that HL provide insurance and also mandating that people use contraception.

        There is another agent here, the employee. They have agency and all.

        Put another way: how is it Hobby Lobby’s business to worry about whether or not its employees avail themselves of contraceptive coverage more than it is any of their business to worry about whatever else their employees are doing?Report

      • Avatar Tim Kowal in reply to Tim Kowal
        Ignored
        says:

        Money is fungible — Hobby Lobby has no complicity in what its employees do with the money. But the Greens sincerely believe it is wrong to take the affirmative step of paying for a health plan that includes drugs or services that by their design end innocent human life. There is a much closer nexus there than in the mere cutting of paychecks.Report

      • Avatar Patrick in reply to Tim Kowal
        Ignored
        says:

        But the Greens sincerely believe it is wrong to take the affirmative step of paying for a health plan that includes drugs or services that by their design end innocent human life.

        This has been asserted. I still don’t see an argument that lays it out.

        Why is it wrong to give someone something that can be used for an immoral purpose, but not wrong to give them something else that can be used for an immoral purpose?

        Either facilitating immoral purposes is wrong, or it isn’t. Either Hobby Lobby is required by their beliefs to take steps to prevent their relationships from leveraging immoral purposes, or they aren’t.

        If it’s not that black and white, if there’s actually a nuanced argument in there somewhere, fine… but you’ve got to make that argument. That’s what “proving the undue burden” bit is all about in the Sherman test, isn’t it?

        Did they?

        My understanding of the case is limited, you guys are the ones that read everything 🙂Report

      • Avatar Tim Kowal in reply to Tim Kowal
        Ignored
        says:

        “This has been asserted. I still don’t see an argument that lays it out.”

        The government stipulated this was a sincerely held religious belief covered under RFRA provided there was standing to assert it and subject to the balancing test. Rarely does the law delve deeply in what constitutes a sincerely held religious belief when it is this straightforward, i.e., members of a major world religion exercising fundamental tenets about the nature and existence of human life.Report

      • Avatar Stillwater in reply to Tim Kowal
        Ignored
        says:

        But the Greens sincerely believe it is wrong to take the affirmative step of paying for a health plan that includes drugs or services that by their design end innocent human life.

        Tim, I’m not as certain about this line of argument as Patrick is, but I will say this: what you did just there is argue by assertion. It seems to me that an entirely valid response is merely to assert my (equally) sincere belief that they’re wrong to think so. What do we do now? Aren’t arguments required to settle the matter? And what would non-circular arguments supporting that view be? I mean, sincerity of belief seems to drop out from that argument pretty quickly, no?Report

      • Avatar Jesse Ewiak in reply to Tim Kowal
        Ignored
        says:

        “Money is fungible — Hobby Lobby has no complicity in what its employees do with the money. But the Greens sincerely believe it is wrong to take the affirmative step of paying for a health plan that includes drugs or services that by their design end innocent human life. There is a much closer nexus there than in the mere cutting of paychecks.”

        Then they should cut a check for the amount they pay for employees insurance and hand it over to those employees to buy their own insurance with.Report

      • Avatar zic in reply to Tim Kowal
        Ignored
        says:

        But the Greens sincerely believe it is wrong to take the affirmative step of paying for a health plan that includes drugs or services that by their design end innocent human life.

        They believe it ends human life; that’s their belief, it’s not a scientific thing, it’s not my belief. I would not try to dissuade them they should personally use these things; I would not try to dissuade them from clearly telling their employees they find them immoral.

        But it’s still the employee’s decision. Supposing they found out an employee had already used the morning after pill or had an ID implanted, or even worse, had an abortion, and the Greens retailiated by firing the employee for using a legal health-care product. Would that be wrong? Would it in someway place the Green’s rights to their morals above the employees?Report

      • Avatar Burt Likko in reply to Tim Kowal
        Ignored
        says:

        Jumping in here — that money is fungible is part of the reason that I do not see a nexus between the Greens’ sincere religious beliefs and the legally-mandated conduct to which they object. If they do not buy insurance, they still have to pay other taxes, and if they do not buy insurance that tax money will go to the government making the same insurance available. Does the handling of what used to be the corporation’s money through taxes somehow wash the officers’ hands of complicity in murder, but the handling of what used to be the corporation’s money through an insurance company (especially through a third-party consultant) not do the same thing?

        There is plenty of use of money allocated by the government and paid in part by me to which I have both legal and moral objections. For instance, I think that the existence of the White House Office of Faith-Based and Neighborhood Partnerships is an Establishment of religion contrary to the First Amendment and my tax dollars (which I do not have a choice but to pay) allocated to the religious institutions whose activities are underwritten by that office thus at least indirectly subsidize those religious institutions’ efforts to proselytize. But as the Supreme Court has held, I and everybody else in the country lacks standing to object to the Government giving money directly to churches on the basis of reasoning that I find flimsy as cellophane.

        Nevertheless, I suck it up and pay my taxes, because the law obligates me to do so. I’m no worse off than anyone else who objects to something the government does.Report

      • Avatar Stillwater in reply to Tim Kowal
        Ignored
        says:

        Then they should cut a check for the amount they pay for employees insurance and hand it over to those employees to buy their own insurance with.

        Which is a pretty accurate description of what employer provided plans essentially are. Instead of the money going directly to the employees who then pay for the individual policies within the group plan the employer acts as the broker and gets a tax deduction in return for its efforts. 🙂Report

      • Avatar Patrick in reply to Tim Kowal
        Ignored
        says:

        The government stipulated this was a sincerely held religious belief covered under RFRA provided there was standing to assert it and subject to the balancing test.

        Well, then, I guess you don’t have to go farther than that, as far as standing. But it still applies to the burden, no?

        Rarely does the law delve deeply in what constitutes a sincerely held religious belief when it is this straightforward, i.e., members of a major world religion exercising fundamental tenets about the nature and existence of human life.

        (I think that’s a pretty serious flaw in the test, then, but that’s an aside)

        I’m uncertain of which denomination the Greens are members. But I wouldn’t necessarily grant them major world religion status given that the Westboro Baptists would claim to be Christian, and they’re clearly not a major world religion.Report

      • Avatar zic in reply to Tim Kowal
        Ignored
        says:

        The government stipulated this was a sincerely held religious belief covered under RFRA provided there was standing to assert it and subject to the balancing test.

        There’s no doubt that the Green’s have a sincere belief here. I don’t think the issue is the Green’s sincerity in any way, shape or form, and I’ve read here that the State didn’t make that argument.

        So the next sections of the balance test come into play — that the state has a compelling interest and pursuing the interest in a manner least burdensome to religion.

        It seems to me that when we step beyond the Green’s personal beliefs to examine the state’s compelling interest, ‘least burdensome to religion’ here must also account for the employees’ religious beliefs, health, and well being; the balance is not met when only the Green’s beliefs are considered.Report

      • Avatar Michael Drew in reply to Tim Kowal
        Ignored
        says:

        @jesse-ewiak

        Then they should cut a check for the amount they pay for employees insurance and hand it over to those employees to buy their own insurance with.

        Here’s the kicker: they also say that religious conscience compels them to provide insurance in the form of insurance, rather than in a cash equivalent thereof. (That this often tends to be an advantage in carrying out certain strategies for doing well in the labor-buying business under recent conditions is a mere coincidence.) So for them that’s still another burden on free exercise if they were to have to take that option.

        …Which is also convenient when it comes to dealing with the fact that the contraception regulation on insurance is something that companies voluntarily choose whether to be subject to by choosing whether to offer insurance or pay the responsibility payment for those who elect not to. Entirely apart from the payment, simply the option of not providing employees with insurance is something they’re not allowed to do by their religious consciences (presumably above a certain basic level of company prosperity).Report

      • Avatar zic in reply to Tim Kowal
        Ignored
        says:

        (I think that’s a pretty serious flaw in the test, then, but that’s an aside)
        @patrick I’ve been wondering about that. Since most cases of RFRA protection involve employment (working on the sabbath, etc.) I wonder about that. One issue I have here is that Tim is trying to make the argument be between two parties — HHS and the Greens. The employees, who’s wages are under discussion, are not part of the conversation; and this seems to me to be a flaw in either the test or failure to recognize that the test includes the third party in the weighing.

        Caldor does suggest the employees rights considered as part of the balance test and a potential burden under the 1st.Report

      • Avatar Patrick in reply to Tim Kowal
        Ignored
        says:

        This goes both ways, actually.

        I mean, absent the government mandating that you kill babies, them providing you access to something that can be used to kill babies through your employer is just them providing access to something. It’s really unclear to me how this presents a moral hazard absent disregarding the agency of the other person entirely.

        The pro-Second argument: guns don’t kill people, people kill people.

        Well, combined oral contraceptive pills have uses other than the morning-after pill (and that’s not even what Hobby Lobby is providing.) Hobby Lobby is presumptively saying that providing access to a certain type of insurance that can provide subsidized access to a certain type of medicine that can be used as an abortificant is morally reprehensible.

        That’s five layers of abstraction. Money is two.Report

      • Avatar Tim Kowal in reply to Tim Kowal
        Ignored
        says:

        @zic There is no suggestion that Hobby Lobby is attempting to reduce the compensation it provides to its employees. Their wages are not “under discussion,” either in Ordinary Court or in the real Court, only how they may or must be paid. Indeed, even if employees did have standing to argue the point, we might also find employees objecting that an important part of their compensation package is being wasted on services they do not want, cannot use, or perhaps even find objectionable along the same lines as their employer. Asserting employees’ hypothetical concerns would send us down a rabbit hole.Report

      • Avatar Mike Schilling in reply to Tim Kowal
        Ignored
        says:

        But the Greens sincerely believe it is wrong to take the affirmative step of paying for a health plan that includes drugs or services that by their design end innocent human life.

        That is, which the Green believe by their design end innocent human life. By their design, IUDs prevent fertilization, not implantation,and that’s how they work in at least the vast majority of, and perhaps all cases. Likewise with emergency contraception. The idea that these things do their work by killing zygotes rather than preventing their formation is, by all scientific measurement, quite false.

        Though I’m not sure that it matters legally whether a religious belief is based on a falsehood, so long as it’s held sincerely.Report

    • Avatar Barry in reply to zic
      Ignored
      says:

      Zic: “And lets not forget; HL has approximately 10,000 full-time employees who are women, who will have their right to make a conscientious and moral decision about their lives and families usurped by HL.”

      Zic, not meaning to pry, but are you a woman?

      Because I’ve been astounded by the number of men here, blithely supporting things discriminatory and burdensome on women. The right-wingers I understand, but I feel that you and I are the only liberals here. Even Burt is missing things which I would have expected any lawyer to have spotted.Report

      • Avatar zic in reply to Barry
        Ignored
        says:

        Yes, I’m a woman in my 50’s, married 30+ years, two grown children.

        When I was born, the pill and abortion were not legal, but marital rape was.Report

      • Avatar Burt Likko in reply to Barry
        Ignored
        says:

        Pray, what am I missing? I can’t help my own perspective and the privileges appurtenant thereto, so when I overlook something it bugs me and constructive criticism is appreciated.Report

      • Avatar Kim in reply to Barry
        Ignored
        says:

        Barry,
        I’m a liberal/libertarian (which is to say, both ideologies work well, in different spheres, and I reserve the right to use the most efficient policy).
        Also female, if you couldn’t tell by my handle (when I started here, everyone asked if I was Korean).Report

      • Avatar Brandon Berg in reply to Barry
        Ignored
        says:

        Yeah, Barry, we get it. You feel entitled to tell other people how to run their own businesses, and you inexplicably believe that this sense of entitlement makes you a good person.Report

  8. Avatar zic
    Ignored
    says:

    Asserting employees’ hypothetical concerns would send us down a rabbit hole.

    Not asserting employees hypothetical concerns was a rabbit hole, and one that left millions of women with health insurance that did not cover their basic health-care needs. That is the essential assertion of the contraceptive mandate. You cannot leave the employees out of the balancing.Report

    • Avatar Tim Kowal in reply to zic
      Ignored
      says:

      The employees’ rights are represented by the state, who dispenses these rights in the first place. That is one difficulty with government-created rights: being collective in nature, enforcement by the individual presents conceptual problems. Being conceived in utility in the service of the greater good, only the greater good’s representative, the state, may enforce them.

      The bottom line is the government does assert the welfare of the employees as its overriding compelling interest here. One may wish they receive more weight, but they are not left out of the balancing.Report

      • Avatar Barry in reply to Tim Kowal
        Ignored
        says:

        My point was that the commenters and posters here are generally not considering anything from the employees’ side. It’s weird. I think in the end it’s a matter of (1) right-wingers/libertarians lusting after ripping a substantial precedential loophole in labor law, (2) the current trend on the right to push ‘religious freedom'[1] and (3) an overwhelmingly male group providing an excellent example of why we desperately need a SCOTUS which has more women.

        Burt, I’m most surprised at you. One things I’ve been harping and harping and harping and harping on is that [to the best of my knowledge] these methods are not legally abortions, and [again, to the best of my knowledge] the Federal government can not force anybody to pay for an abortion.

        Given those two assumptions, the Greens have no case, unless sincere religious belief ****about the legal status of facts**** takes the place of ****the actual legal status of facts****. To my mind, the Greens pretty much admitted a fraudulent case when they didn’t claim ‘A is B, and the Federal government can’t require me to pay for it, but rather ‘I *believe* A is B, and the Federal government can’t require me to pay for A, because it can’t require me to pay for B’.

        I believe that I’ve wondered about other provide examples where sincere religious belief[2] that A is B binds the court to act as if A were B.

        [1] Does not apply to Muslims, pagans, liberals, Buddhists.

        [2] ‘Sincere religious belief’ can coexist with doing something right up until the law required it, and can also exist with sourcing goods from countries where the female labor force is very highly likely to be, ah – ‘encouraged’ to use contraception and abortion.Report

    • Avatar Barry in reply to zic
      Ignored
      says:

      “Asserting employees’ hypothetical concerns would send us down a rabbit hole.”

      Right now the Greens are asserting a hypothetical (contraception = abortion), and most people here accept it, and don’t seem to be concerned that equating belief with legal and factual reality is actually an invitation down a rabbit hole.Report

  9. Avatar J@m3z Aitch
    Ignored
    says:

    @tim-kowal,

    Although I remain not fully persuaded, this approach is much more to my way of thinking than what I critiqued previously. Although I’m undecided whether it answers the whole question, I’m with you on the point about the state not being able to answer for us before god.

    I share your critics’ concern, though, about priviliging religious conscience over other conscience. As we continue to trend toward becoming a more secular society, does our protection from government’s trampling of our deepest and most fundamental moral/ethical beliefs decline? I will stand for the protection of your conscience rights; will you stand for mine? If you don’t stand for the conscience rights of us non-believers, how long do you expect we will stand for yours? I just don’t like where this leads for any of us.Report

    • Avatar Tim Kowal in reply to J@m3z Aitch
      Ignored
      says:

      “I will stand for the protection of your conscience rights; will you stand for mine?”

      I want to avail myself of the format of this discussion and give one answer that is limited to the facts of this case, and then another answer that gives you my thinking more broadly.

      On the facts of this case and the framework of conscience protections provided in my opinion above, I can’t answer your question. The Greens believe it to be a duty to their faith and God not to supply these drugs, and the First Amendment was drafted and enacted with just this conception of conscience in mind. I may be mistaken, but it seems to me that an atheistic conception of conscience is fundamentally different. That doesn’t mean it is not entitled to protection, but a different framework than the Madison/Leland one supplied above does not immediately provide it.

      With that, I can only ask to be taken as sincere that I have made no conscious attempt to selectively protect the conscience of the faithful to the exclusion of non-believers. In fact, one reason I wish to protect the conscience even of non-believers, even if the framework above does not adequately do so, is because I believe that the deeper exploration of conscience does suggest the notion of duty, and a duty implies someone or something outside oneself. In other words, seeking conscience — whatever one thinks at their particular stage of life and searching — is wrapped up with the pursuit of happiness.

      Note also that I have not rehearsed the protections the founders believed the most effective: the fact that government was never given powers great enough to reach the province of conscience in the first place. This should always be the first refuge of those who seek liberty.Report

      • Avatar Jim Heffman in reply to Tim Kowal
        Ignored
        says:

        It’s also worth pointing out that the RFRA comes into play after the punishment for noncompliance. It’s not as though you can just say “religious objection, eff off copper”. There’s a lengthy court process involved in establishing that you can actually ignore this or that law based on religious belief.Report

      • Avatar J@m3z Aitch in reply to Tim Kowal
        Ignored
        says:

        @tim-kowal

        Thank you for your reply. A couple of clarifying points, if I may.

        First, I thought I took you to be skeptical of non-faith-based claims of conscience, perhaps just on grounds of potential overbreadth of application of them causing all regulations to grind to a halt (a libertarian’s dream, right?). If I read you wrong, that’s on me, and I take your clarification here as your position.

        Second, while the atheist’s foundations for particular beliefs of conscience may differ radically from theists’ foundation, I don’t think there’s any conceptual difficulty at all for atheists to come to whole hearted and unstinting support of theists’ rights of conscience. I know many atheists who critique free exercise violations with all the vigor with which they critique establishment violations (although the latter get much more press, because they’re the only ones that create sufficient conflict to provide the necessary drama for media coverage).Report

      • Avatar J@m3z Aitch in reply to Tim Kowal
        Ignored
        says:

        @tim-kowal

        Would you mind if I emailed you about a possible writing project that I think would be up your alley?Report

      • Avatar Tim Kowal in reply to Tim Kowal
        Ignored
        says:

        Sure. I’ve never been any good at holding grudges.Report

      • Avatar Barry in reply to Tim Kowal
        Ignored
        says:

        “I will stand for the protection of your conscience rights; will you stand for mine?”

        Tim, where has the Federalist Society stood for the protection of consciences rights for liberals?Report

  10. Avatar Jim Heffman
    Ignored
    says:

    I do have to say that an argument based on “you are wrong, the things you wish to not provide do not act as abortifacents, but only as pregnancy prevention” is a lot easier to accept than “RESPECK MAH AUTHORATAH”Report

  11. Avatar Barry
    Ignored
    says:

    Tim Kowal

    ““In but not of” is a well known Christian dichotomy. It is not part of Christianity to retreat from public life to live in belivers-only communes. Most would regard it as a dereliction of their duty, which is to preach the gospel to the world. Living “in” the world is not a concession but an obligation. The Greens regard the carrying on of a wholesome productive business to be an outgrowth of their faith. It does not require or even suggest they hire only non-Christians, or put strings on what they may do with their paychecks.”

    Nobody is suggesting that; I ask that you stop playing strawman games.

    If the Greens had structured Hobby Lobby differently, for example as a non-profit organization [1] with a religious charter, they would not be in this situation. They chose otherwise.

    I’d really like it if you’d engage with the arguments which people are offering.

    [1] Note that leaders of non-profits can still pull down fat paychecks. The biggest difference, as I see it, is that this would have made it harder for the Greens to become wealthy, as opposed to merely rich (in the Chris Rock sense).Report

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