Sebelius v. Hobby Lobby Stores, Part II: Justiciability of Corporate Claims

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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122 Responses

  1. Avatar James K says:

    Just a little terminological question: does the term “natural person” not exist in US law, or did you just avoid using it in an attempt to avoid using jargon?Report

  2. Avatar J@m3z Aitch says:

    I regret to say that I remain unpersuaded by the majority claim that the Greens cannot maintain their conscience rights through the form of their closely-held corporation or by the dissent’s claim that they cannot.

    I think the majority is too readily dismissive of the close identity between the Greens and their corporation. With a broad brush and too little analysis they have effectively said that people of faith cannot construct a corporate form to pursue religious activities without being compelled to support activities that violate their faith. I think there is too little consideration and justification of that point. Further development of the argument that corporate status is not a right, but a special privilege that can be offered conditionally might have persuaded me.

    The dissent might therefor have had me had it stuck to a dry legal argument that corporate status, at least in the case of a closely-held corporation, is not a conditional privilege, and instead of saying the corporation was merely the arena for the Green’s rights–which could be read to equate HL with, say, GE, which begins to beggar the imagination–had emphasized the private nature of the corporation. By indulging in a more philosophical and almost overtly religious approach, instead of dry legal analysis, the dissent loses force. It creates the impression that mere law is insufficient to defend the position, and makes the defense of HL appear wholly dependant on religious faith, on an agreement with Madison about the existence of a creator. But the Green’s position–to be constitutionally defensible–must be supportable by those who don’t believe in a creator, but only in respect for the freedom of others to do so. The Constitution is not a religious document, and so does not require faith to believe in and adhere to. By indulging in such overt religiosity in interpretation, the dissent has undermined the general persuasiveness–or potential persuasiveness–of its own position.

    Were I writing on my own, I would be torn between concurring in the outcome but with different logic or dissenting separately.Report

    • I think the majority is too readily dismissive of the close identity between the Greens and their corporation. With a broad brush and too little analysis they have effectively said that people of faith cannot construct a corporate form to pursue religious activities…

      Two questions follow from this…

      First, if the owners of the corporation may use it to reflect their personal beliefs and opinions, why should they continue to receive the liability protections that incorporation provides? Once you’ve said that the corporation is the owners for some purposes, why doesn’t it have to be the owners for all purposes?

      Second, where do you draw the line? How closely held is close enough? Do the shareholders have to record votes? Is it simple majority rule? In the case of a widely held corporation, can the corporation inherit the religious beliefs of, say, the board of directors? The CEO?Report

      • Avatar zic says:

        A third would be how far the rules flow; what beliefs are included a acceptable for corporate personhood.

        Would a Muslim cab owner be allowed to refuse rides to a woman traveling without a male companion?

        Would a photographer be allowed to refuse to work for a same-sex wedding? That was narrowly settled on state law, and how would that state law function after?

        Would there be businesses seeking exemptions for vaccines, blood transfusions, or psychiatric care?Report

      • Avatar J@m3z Aitch says:

        Michael,

        why should they continue to receive the liability protections that incorporation provides?

        Why would we say it’s legitimate to put constraints on fundamental rights in order to obtain a generally available legal status? When is fundamental not fundamental? (This answer, while a valid thing to think about–and I believe is at the heart of Justice Kowal’s dissent–does not answer the question of when natural persons are legally synonymous with the corporate person, which is the main sticking point for me, as I can’t decide where I stand on that.)

        Once you’ve said that the corporation is the owners for some purposes, why doesn’t it have to be the owners for all purposes?

        Because law makes distinctions.Report

      • Avatar Barry says:

        Adding on to this:

        1) The Greens could have structured Hobby Lobby as a non-profit, or in other forms. They chose incorporation, and undoubtedly chose that for the large set of legal advantages it brings, which can be summed up in the (non-technical term) ‘separation of business and owner’. The Greens are in general not personally liable for the actions of Hobby Lobby, even as they posses total legal control. The greens can sell pieces of Hobby Lobby in a manner far easier than bringing in new partners. And so on.

        What the Greens want is to preserve every single legal advantage of incorporation, but to be allowed the right to selectively waive those legal restrictions which they don’t want.

        2) Burt: “nor is there any contention before the Court other than that Hobby Lobby’s various cited charitable and business activities are motivated by a sincere desire to promote and advance the religion of Christianity.” IANAL, but I’d classify that statement as ‘not even wrong’. As you pointed out, ‘Hobby Lobby’ is a legal entity separate from the Greens (try to sue them, and see just how fast they’ll make that claim).

        J Kowal: “The corporate entity is merely the space in which the Greens discharge their duties of conscience, investing themselves in creating a successful, wholesome, and faith-guided economic enterprise, providing good jobs to thousands of employees. The corporation, a fiction that exists only in the law, has no duty of conscience. ”

        The whole point is that the Greens quite deliberately chose to set up a legal entity which is separate from them. That entity is bound by all applicable laws. Also ‘creating a successful, wholesome, and faith-guided economic enterprise, providing good jobs to thousands of employees’ is absolutely irrelevant to the case. Not to mention it’s also simply not true; Hobby Lobby sources a lot from Chinese factories, presumably due to price, part of which is due to mistreatment of workers, presumably including pressured abortions (if not forced abortions), and pressure to use contraception.
        That duty resides in the hearts and minds of the Greens. The Greens must have the right, whether individually or through the corporate fiction if legal technicality insists, to enforce that right and preserve the space to obey their conscience.Report

      • Avatar J@m3z Aitch says:

        what beliefs are included a acceptable for corporate personhood.

        This is inevitable; a necessity of practical application that cannot wished away. Nevertheless, it is dangerous ground on which we should tread with great trepidation. Giving government the authority to determine what beliefs are legitimate–or important enough–is a power that should be tightly leashed.

        Never forget that your opponents will control the levers of the regulatory machinery at some point. Do not ask for one iota of power that you are not comfortable letting them wield.Report

      • @michael-cain

        These are good questions, and I think they’re the exact questions that @jm3z-aitch was looking for both the majority and dissenting opinions to address.Report

      • Avatar Jim Heffman says:

        “if the owners of the corporation may use it to reflect their personal beliefs and opinions, why should they continue to receive the liability protections that incorporation provides?”

        Isn’t this the attitude of many leftists, though? The notion that incorporation gives undue and immoral immunity from personal responsibility for reprehensible behavior?Report

      • Avatar Kim says:

        Jim,
        I see prosecuting a corporation for slavery as a very different issue than giving it the right to freedom of expression. [In no small part because slavery is part of the corporation’s charter (or at least could be), and definitely part of its business plan.].Report

      • Avatar Brandon Berg says:

        First, if the owners of the corporation may use it to reflect their personal beliefs and opinions, why should they continue to receive the liability protections that incorporation provides?

        Why should these two things be connected in any way?Report

    • Avatar Burt Likko says:

      Professor Aitch: does part III of the opinion address these concerns (whether or not it actually persuades)?Report

      • Avatar J@m3z Aitch says:

        @burt-likko
        I’ll let you know when I read it tomorrow. 😉 It was a busy day and I had insomnia last night, so I’m looking for easy thoughtless commenting right now.Report

  3. Avatar zic says:

    Or that the Pilgrims who formed the for-profit Massachusetts Bay Company declared in their Company Charter the spread of the “Christian Fayth” among their venture’s express purposes.

    There are some problems with this; the Pilgrams didn’t form the Massachusetts Bay Company, wealthy shareholders who mostly remained in England did. The faith that they were seeking to spread was that of the Church of England; and most of the Pilgrams had been driven out of England for practicing a different brand of Christianity. At the time, the Pilgrams were called “Separatists” by others, and referred to themselves as “Saints.” Among the passengers on the Mayflower were a few representatives of the corporation, but the majority of the passengers were Separatists, outlaws in England who’d fled to Holland, and were now recruited to settle a new company town on these shores; the most likely reason being that they were desperate, broke, and having troubles in Holland, too. The notion that our nation is rooted in a company seeking to spread the faith held by the share holders who funded the endeavor doesn’t stand up to scrutiny.Report

    • Avatar zic says:

      Further — the state sponsored religion reflected in that contract is probably the root of the reason the 1st protects religious freedom.Report

    • Avatar Barry says:

      In addition, if that charter were the basis for US laws, ‘Puritans’ would have the legal right to persecute members of other religions (which would undoubtedly include many members of of right-wing churches).Report

  4. Avatar Barry says:

    Zic: “A third would be how far the rules flow; what beliefs are included a acceptable for corporate personhood. ”

    This is something that the supporters of the Greens have never answered: the principle which the Greens are pushing is that the owners of a corporation should be waivered from laws which they claim to find against their morals[1][2], regardless of the burdens imposed upon others, or the religious beliefs of others[3]. As far as I can see, that’s basically throwing large chunks of labor law out the window[4], not to mention who knows what other laws[5].

    [1] Even if the claim is dubious; Hobby Lobby offered contraception in their benefits package up to around 2012. They seem to care so little that they didn’t check.

    [2] Even if the claim is legally fraudulent – the Greens are claiming that they *believe* that certain forms of contraception are actually abortion; if this was true, they could have filed such a claim, and won hands down. What they are doing is asserting that they believe that A is B, and therefore the courts should act as if A were legally and medically B.

    [3] BTW, any answer to this which boils down to ‘tough sh*t – if you don’t like it, work somewhere else’ simply concedes that I am right here.

    [4] [5] From what I’ve heard, the usual right-wing groups who have recently decided to claim that everything they don’t like violates their ‘religious freedom'[6] is backing this, and I’ll bet that they have a list of what laws a favorable precedent would logically void.

    [6] Not applicable to Muslims, pagans, or any other religious groups that the right doesn’t like (unless Liberty Lobby, for one, is currently participating in suits against Tennessee and various counties and cities within that state).Report

    • Avatar zic says:

      Hobby Lobby was approached by a Legal Fund seeking cases for challenging the contraceptive mandate. Before this, they had not reviewed the types of contraceptive coverage they offered. Additionally, the company’s pensions were invested in several funds that included investments in the company’s that make these contraceptives.

      They did not think their religious mores spread to insurance or investment before the mandate; only after they were asked by the legal fund agitating to challenge the mandate.Report

      • Avatar Kim says:

        Yeah. This makes me not want to have to deal with them as litigants.
        People who sign up just for fame (or ideologically based reasons) aren’t really in it for the core belief (note: if their ideology was mostly god-based, as I truly believe Sierra Trading Post’s ideology is, then I’d have no trouble with them going to bat for that — it’s a free country).Report

    • Avatar J@m3z Aitch says:

      Man, when I started reading that, I read “the Greens” as referring to the Green Party, and I was thinking, “what the hell is talking about?” Then it hit me.

      The writing is perfectly clear. The problem was all on my end (obviously I need another cup of coffee).Report

  5. Avatar zic says:

    There has been a lot of chatter about the closely-held corporation.

    Disclaimer: I own shares of a closely held corporation; and as I said, the ‘closely held’ part indicates that I cannot turn around and randomly sell those shares to anyone; they must be sold either to the corporation or another shareholder of the corporation; in all other ways, this is not different from a privately-held corporation.

    Closely held corporations are generally structured that way to maintain a management philosophy, to ascertain that new shareholders will not try to subvert the company management in some way. In the case of the company I own share of, the company (a tech company) is highly focused on development, and the choice is rooted in maintaining an ongoing development focus — there is a long track record that reflects the limitations placed on share holders.

    Governing a corporation from a set of religious beliefs does seem legitimate; owner’s of a kosher deli, for instance, make a promise to their customers that their products are kosher.

    My problem with Hobby Lobby and the contraceptive mandate is that they had not, prior to ACA, applied the standards they’re claiming to their business. They’d offered both insurance and pension that violated the belief standard they now claim. This was not part of their closely-held business practice before the contraceptive mandate; and now that it is law, they’re seeking an exemption for something that they were previously participating in.Report

    • Avatar J@m3z Aitch says:

      zic,

      I get where you’re coming from, but I’m dubious about how much it legally matters. No person is without sin, and an important part of the Christian faith is recognizing your sin, asking forgiveness, and going forth to sin no more. To argue for the Greens, I’d say they hadn’t really thought about that particular action, and when someone said, “hey, this thing X that you’re already doing, and are being asked to continue doing, is sinful,” they recognized they’d erred, and are setting forth to sin no more. From that perspective, your argument can be transformed into a claim that “if you sinned before, you can legitimately be compelled to sin again–there is no ‘sin no more’ for you.”

      And while we might think that corporate personhood separates the individuals from the actions of the business they own, that is merely a legal separation, that has no binding power on any god(s) that might exist. The option to forgo offering insurance is not sufficient weight against this, as it is unconscionable to order someone to sin unless they pay you a fee for the right/legal privilege of sinning no more.

      I suspect Tim believes that most of his critics don’t really grasp how serious this faith issue is for many Christians (and I welcome his correction if I have misrepresented him). And while I often very sharply disagree with him, I’m inclined toward that belief myself.Report

      • Avatar Patrick says:

        I dunno, James, I think it matters from a standing standpoint. There’s a burden on the plaintiff, in order to get started…

        Under this test, the plaintiff must prove two things: first, that the plaintiff has a claim implicating a sincere religious belief, and second, that the government’s action imposes a substantial burden upon that religious belief. If the plaintiff can prove these things, the burden then shifts to the government to show that its actions are both in furtherance of a compelling governmental interest, and that the government’s action is narrowly-tailored to restrict the free exercise of religion in the most minimal manner possible.

        Step 1 is demonstrating a sincere religious belief. I’m not so sure that this doesn’t damage their claim to sincerity.Report

      • Avatar J@m3z Aitch says:

        I’m not so sure that this doesn’t damage their claim to sincerity.

        I’m not sure what the “this” is referring to?Report

      • Avatar Jim Heffman says:

        What Patrick is saying, here, is “you used to have a health care plan that offered contraception and you didn’t seem to mind, now suddenly you do, obviously you aren’t sincere in your beliefs”.Report

      • Avatar Patrick says:

        Not exactly.

        I honestly don’t care whether they’re sincere in their beliefs or not (see Mark’s post following as for the explicit reason why), I’m willing to accept that myself.

        But I can certainly see an argument that they’re insufficiently sincere to claim that their freedom of religious expression is limited by PPACA. I mean, it’s not like those points are completely invalid.Report

      • Avatar J@m3z Aitch says:

        @patrick

        The difficulty is determining their level of sincerity. I get why there’s reason to be skeptical. But man is that ever an authority I’m hesitant to give to government. Because I foresee this:

        “Mr. Aitch, we’ve reviewed your claim for conscientous objector status to avoid being drafted and sent to kill enemy A-rabs. But we saw some of your writings about the Iraq War from 10 years ago, and it didn’t seem to us that you protested strongly enough, so it’s our determination that you’re not sufficiently sincere about your so-called conscientous objections. So here’s your gun, now kill, kill, kill!”

        Are you comfortable letting government officials–or anyone else–authoritatively determine the depth of your sincerity?Report

      • Seems like in the HL case there was an argument to be made for insufficient sincerity… but the government didn’t make that argument. To the contrary. While I can understand the government considering an argument not made before the court (I don’t know the precedent), I’d have a problem with the court saying “insincere” when both sides before the court are saying “sincere.” The sincerity ought to at least be challenged (and not by the justices).Report

      • Avatar Mike Schilling says:

        @jm3z-aitch

        Isn’t that already the case? CO status isn’t automatically awarded after simply making the claim.Report

      • Avatar Patrick says:

        That’s a fair objection and now I have to self-examine if I’m grumpy ’cause they’re asking for something I think everybody should get elsewhere and they don’t get.Report

    • Avatar Stillwater says:

      My problem with Hobby Lobby and the contraceptive mandate is that they had not, prior to ACA, applied the standards they’re claiming to their business. They’d offered both insurance and pension that violated the belief standard they now claim.

      Isn’t one relevant difference that prior to the ACA they voluntarily offered those things whereas under the ACA they’re compelled to?Report

      • Avatar zic says:

        When it was voluntary, they had no seeming conflict with their religious beliefs. They didn’t have a conflict at all until they were approached by a 3rd party asking to pursue the case.

        My inner-skeptic and conspiracy theorist has come to the notion that this isn’t about Hobby Lobby’s insurance for employees; it’s about creating legal precedent defining life as beginning at contraception; and that’s why the case is narrowly focused on forms of contraception that may allow fertilization but not implantation.Report

      • Avatar J@m3z Aitch says:

        I wouldn’t think so. I think zic’s point is that voluntarily offering indicates it’s not actually the deeply held religious value they’re not claiming it is. I think the potential for error and oversight undermines that claim, but if it was the case that the company was truly doing so voluntarily–aware of their acts and their significance–I’m doubtful they could then turn around and say “but my faith compels me to do the opposite.”

        There may be arguments against that position, of course. I’m offering that as my particular viewpoint, not as “the Truth.”Report

      • Avatar zic says:

        I think the potential for error and oversight undermines that claim, but if it was the case that the company was truly doing so voluntarily–aware of their acts and their significance–I’m doubtful they could then turn around and say “but my faith compels me to do the opposite.”

        I get concerned with the potential that corporations, in looking for loop holes out of what they perceive to be expensive requirements, will find God in all sorts of new and interesting ways. I see a bloom of corporation-as-religion on the horizon.Report

      • Avatar Stillwater says:

        From my pov, basing an argument against Hobby Lobby on the consistency of their practices over time sorta misses the point. If this were a criminal case, it might be relevant, but it isn’t. They’re challenging the power of government to restrict religious expression which exists at the level of principles and constitutional interpretation and so on. Personally, I don’t think the complexion of the case would change on iota had they been staunchly pro-choice prior to the enactment of the ACA since they’re particular views sorta drop out of the equation.

        I mean, I’m staunchly pro choice, but I could argue in favor of Hobby Lobby on purely principled grounds and I’d hope my arguments would be heard without someone accusing me of a lack of sincerity.Report

      • Avatar MyNameIsNotRelevant says:

        According to the public statement by either Hobby Lobby or legal counsel, They were unaware the health plan included such coverage until it was pointed out to Them. The law does not and cannot prohibit “repentance”.Report

      • Avatar zic says:

        @stillwater
        I mean, I’m staunchly pro choice, but I could argue in favor of Hobby Lobby on purely principled grounds and I’d hope my arguments would be heard without someone accusing me of a lack of sincerity.

        I can appreciate this; and I don’t doubt for a moment that the Green are sincere in their beliefs.

        I’m sincere in mine, too; and the right of any woman to have agency over her own body matters greatly to me. That agency includes the right to refrain from using any and all contraception that might offend her beliefs.

        Which is really the heart of my problem here; it’s not the Green’s sincerity of lack thereof, it’s that chain of command over that sincerity — individual to corporate or political. I’m not sure how one passes that sincerity along that chain without creating a host of other problems.

        Is a corporate-sponsored religion acceptable? Because passing sincerity along goes there, and that violates civil rights of employees. There’s a reason we carve out exemptions for religious groups to discriminate in this way; it’s not an exemption that should, in my opinion, be read more broadly.

        So prior activity probably isn’t a good measure of sincerity; but it is a measure of understanding the difference between individual and corporate rights; and those matter here, greatly.Report

      • Avatar Stillwater says:

        So prior activity probably isn’t a good measure of sincerity; but it is a measure of understanding the difference between individual and corporate rights; and those matter here, greatly.

        No offense, zic, but I don’t understand this comment. Forget about Hobby Lobby for a minute and just think view them as anonymous corporation X. X makes a complaint against certain provisions in the ACA – the contraception mandate – on the grounds that it violates religious expression. All that’s required to get this argument moving forward is to a) identify a religion which is opposed to contraception and b) cite the free exercise clause in the constitution. Both are pretty easily done, it seems to me. The specifics of what type of firm X actually is – and what they’re specific motivations are – seem to me to drop out as irrelevant pretty quickly.Report

      • Avatar Kim says:

        Stillwater,
        And when a company won’t pay for health insurance for women that haven’t had clitoridectomies, and thus are unchaste and impure? (Or men who don’t wear beards?)
        [Note: of course this isn’t a religion. Beliefs are beliefs, though, and many places practice this one.]Report

      • Avatar Stillwater says:

        I wanna add that the above comment isn’t intended to express any disagreement with you but rather to show that, given how things shake out from my pov, I’m not seeing (yet!) how your concerns are relevant to the case.Report

      • Avatar Stillwater says:

        kim,

        I’m fully on board with the rhetorical question and I’m fully on board with the implied answer. But what’s the argument? I noticed that you didn’t actually provide one.

        I don’t want to get too far in front of the posts, but personally I think the resolution to this issue comes down to one important pragmatic issue coupled with prioritizing competing rights. We’ll find out soon enough what the OT Court’s final ruling is and can talk more about it then.Report

      • Avatar Kim says:

        Stillwater,
        i am taking a very small step down the slippery slope argument line, saying that I think that this provides a real degradation of equality of people.

        But I have a suppressed premise here, lurking in the wings — what is okay for a person is not okay for a corporation. After all, refusing to marry a woman who doesnt’ have a clitoridectomy undoubtedly occurs today. I think it fundamentally has something to do with the power structures, with how large a corporation is, and how much that gives them the ability to wreck things (with money or with bullets) and go unpunished.

        Can one try a corporation for murder (I assume, since one can’t hang the corporation, this would be some sort of civil trial)? What if a corporation hired an assassin to kill someone critical?Report

  6. I think @jm3z-aitch makes good points about the majority opinion and the dissent. I tend to agree with the decision to which the majority came, but I don’t really like the reasoning. It seems thin and it seems to just dismiss religious viewpoints of the Greens without much substantial backing.

    I can’t quite get behind Tim’s dissent, in full, since, as jm3z says, it starts to rely a little too much on religious sympathy, rather than legal or philosophical reasoning. However, Tim quite adequately demonstrates the weakness of the majority opinion. We can’t just waive away claims by the Greens (or anyone, really) that their business and economic endeavours have something to do with their faith. For many people, their faith guides them in just about everything they do (or, at least, it generally does; we’re all fallible). If we want to put limits on this, we really need to have solid justification. Though I think the law has such a justification, I don’t know that the majority’s justification is all that solid.

    Finally, a little quibble about this debate in general. I get the difference between corporate pershonhood and being a real boy, so I have no problem with differentiating between a corporation being a “person” but not being a natural person.

    However, the declaration that is regularly made that corporations are not people seems blatantly false. I know that legally, this is true, but in reality, corporations are people. We can define it different ways, but corporations are the owners, managers, employees, etc. They’re the people that comprise the corporation. Hobby Lobby wouldn’t exist without the Greens or its other agents.

    Sure, legally this doesn’t mean a whole lot (when it comes to taxes, property ownership, liability, etc), but it does mean something to people like the Greens. This doesn’t mean that religious freedom must automatically transfer from the Greens to Hobby Lobby, but it does mean that there are deeper questions here than some people want to admit.Report

    • Keep in mind that this is just the first substantive part of the opinion to get released.Report

      • Avatar J@m3z Aitch says:

        Oh. I thought it seemed a bit brief and thin, but the inclusion of the dissent here led me to believe that the majority opinion was complete. Not complaining, just noting.Report

      • I can understand the confusion. We decided that to do everything at once would result in an overly long, confusing, and difficult to read post. So we tried to chop it up by issue.Report

      • Avatar J@m3z Aitch says:

        It might be worth considering leaving dissents to last, which is sort of their natural place, in future Ordinary Court sessions. Or it might be worth considering the source of the suggestion and disregarding it without further thought. 😉Report

      • Fair enough. I had meant to make some caveat that there might be more substance later, but then I got distracted by pictures of Pinocchio.Report

      • Avatar Burt Likko says:

        The whole thing would have been about 8,000 words long. We’ve got to break that up somehow because this is, after all, a blog format.Report

      • Avatar J@m3z Aitch says:

        Burt,

        To clarify, I’m not critiquing that. There is an unfortunate consequence of breaking a more-or-less coherent whole into multiple parts, which is that issues yet to be broached are being debated vigorously before they are ripe (so to speak). But I think the 8,000 word post creates its own problems that in the great majority of cases outweigh that particular problem.

        As will all policies, there’s a tradeoff.Report

      • @jm3z-aitch Now that we have part III up, I think you may better understand why we did it in this fashion. Because the votes shifted so much from issue to issue, it would have become really hard to follow which position was the majority on which issue.Report

    • Avatar Burt Likko says:

      Watch for the majority opinions in parts III and IV, scheduled to post at noon and 4:00 pm Eastern time today (further to my Brother Justice’s comment above).Report

    • Avatar DavidTC says:

      @jonathan-mcleod
      However, the declaration that is regularly made that corporations are not people seems blatantly false. I know that legally, this is true, but in reality, corporations are people. We can define it different ways, but corporations are the owners, managers, employees, etc. They’re the people that comprise the corporation. Hobby Lobby wouldn’t exist without the Greens or its other agents.

      This is, in any sense of the word ‘exist’, incorrect.

      The most obvious way to demonstrate this is to point out that if the Green sold all their shares of Hobby Lobby, and fired all employees, the corporation would still exist. Obviously, corporations need people to do things in the name of the corporation, but they don’t need any specific people.

      And they still exist even without any people at all. If a corporation somehow ends up existing without anyone authorized to represent themselves as the corporation, than the government itself will take over operation.

      A corporation is not the people that make it up. A corporation is a legal fiction residing in the mind of the government, which has specific people entitled to attribute their own acts to that fiction. Those people can change. Those people can even not exist. The corporation will continue to exist until dissolved.Report

      • Well, unless you’re going to point to some counterfactual where other people started Hobby Lobby, then I’m still good with saying that Hobby Lobby wouldn’t exist without the Greens.

        Would it continue to exist without the Greens, sure it could.

        “Obviously, corporations need people to do things in the name of the corporation, but they don’t need any specific people.

        And they still exist even without any people at all. If a corporation somehow ends up existing without anyone authorized to represent themselves as the corporation, than the government itself will take over operation.”

        So, you’re saying that HL would have agents that continue its existence. Hence why I said “the Greens or its agents”.

        “A corporation is a legal fiction residing in the mind of the government, which has specific people entitled to attribute their own acts to that fiction.” That’s either a legal or philosophical interpretation (or, sure, both). The mere statement doesn’t disprove other viewpoints.Report

    • Avatar Jim Heffman says:

      “[I]n reality, corporations are people.”

      …said Mitt Romney, and didn’t we all laugh at him for it.Report

    • Avatar Brandon Berg says:

      I know that legally, this is true, but in reality, corporations are people.

      Right. “Corporations are people” doesn’t mean a corporation is a person. It means a corporation is people.Report

      • Avatar Mike Schilling says:

        Which people? The ones suing are the stockholders, not the officers, managers , employees., or customers. That makes the corporation its owners with all of their personal rigjts plus special protection against civil and criminal liability. Nice work if you can get it.Report

  7. Avatar Don Zeko says:

    Part II sure seems to indicate that whatever follows in the opinion will be dicta, which is why, were I on the Ordinary Court, I’d be writing a concurring opinion. Basing the Court’s ruling on whether or not corporate persons can have sincere religious belief risks tacitly endorsing the Plaintiffs’ theory of how Free Exercise jurisprudence should work, which is a far more dangerous notion than corporate religious belief.

    According to the plaintiffs here, the process for analyzing a Free Exercise claim is as follows: First, does the plaintiff have a sincerely held religious belief that behavior required by law or regulation is unacceptable? Here the court’s will almost always assume the sincerity of a claimed religious belief that isn’t facially fraudulent. Second, would failing to behave in the manner demanded by law or regulation result in substantial financial or legal consequences? If the answer is yes, the plaintiffs would have us immediately move to a strict scrutiny analysis of the law or regulation in question, which huge swathes of the US code will fail. What’s missing here is any inquiry into whether there is a substantial relationship between the behavior the law requires and the stated religious beliefs underlying the plaintiff’s objection. As stated by the plaintiff, something as contingent as paying taxes to the state, which then funds religiously objectionable behavior, would force the state to justify any conceivable expenditure of public funds under strict scrutiny. This theory would subject the entire Federal (and state level) regulatory apparatus to strict scrutiny if adopted by the court.

    The proper ruling, then, is to find that, in a market economy, there must be a more direct nexus between the compelled behavior and religious belief. Health insurance is employee compensation, not a gift by the employer to the employee. Here, Hobby Lobby cannot meaningfully be said to be providing birth control to its employees, paying for their birth control, or making any sort of decision to use birth control. Its claim is no more reasonable than challenging minimum wage laws because employees might use their additional income to purchase supposedly abortifacient birth control. There is a point beyond which dollars that have left your hand are no longer your business, and that is where we stand with Hobby Lobby.Report

    • Avatar Jim Heffman says:

      “huge swathes of the US code will fail.”

      You forgot “Third, does the government have a compelling interest which can only be addressed by a means which places a burden on religious expression?”

      Because that’s kind of important, here. You could argue that if the government thinks birth control is so great then it ought to provide birth control through the Department of Health and Human Services (or just give a big subsidy to Planned Parenthood.)Report

      • Avatar Patrick says:

        You know, Jim, that’s a eminently fair point, and if it got that far I’d agree that this is the stickiest part of the government’s case.

        I just don’t think we get that far.Report

      • Avatar greginak says:

        Great Jim, I agree we should have universal health care. So now we can just do it right? If its important DHHS can just provide it.Report

      • Avatar Kim says:

        Jim,
        Yeah, I do think that and I think that it’s a better way of making things work. In a perfect world, we would have single payer, and have a roaring economy because of it.Report

  8. Avatar Stillwater says:

    I agree with the majority here and disagree with Kowal’s dissent, in particular, with the reasoning expressed in this passage

    Despite the unequivocal acknowledgement by the Father of our Constitution that the right to conscience is unalienable, the Government now takes the position the Greens lost the right in exchange for “limited liability” of the corporate form.

    since in my view it expresses a confusion: the Greens, being natural persons, haven’t gained or lost any rights by availing themselves of the protections and privileges accorded limited liability corporations.

    But Tim’s argument brings to my mind an interesting question, one that I think might not be so easily answered. One of the prevailing interpretations of first amendment language is that it explicitly prohibits legislation restricting free speech: “Congress shall make no law … abridging the freedom of speech, or of the press…”. Given that the restriction is understood to apply in all contexts, fully generally, the conclusion is that the court is justified in declaring campaign finance restrictions to be unconstitutional irrespective of whether that funding derives from natural persons or corporate entities or whatever.

    By analogy, however, the first amendment appears to impose the exact same type of fully general limitation on governmental power with respect to the restrictions on the exercise of religious beliefs: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” ANd if that’s the case, then the argument against limitations on free exercise ought to be understood along the same lines as restrictions on free speech such that the type of entity engaging in the questionable action is rendered irrelevant since the protection to exercise that freedom applies fully generally.

    Now, I realize that the argument made by the majority in this case is that corporate entities cannot (or perhaps more modestly the conclusion is that the do not) hold religious beliefs, so the the idea of a restriction on those beliefs is incoherent. But clearly, if this type of reasoning were applied to the issue of free speech the argument would lead support the conclusion that corporate entities have no beliefs to express and thus are accorded no first amendment protections with respect to expressing them. Therefore, the correct interpretation of the first amendment is that the protections accorded therein apply fully generally, irrespective the types of entities – corporate or natural – to which those protections might (or might not) apply.Report

    • Avatar Jim Heffman says:

      I do have to say that it’s important to understand the sense in which the word “respect” was used in the phrase “Congress shall make no law respecting an establishment of religion…”

      People tend to interpret it in the sense of “approving of or giving credence to”, but I believe it’s more properly “with regards to”.Report

      • Avatar Stillwater says:

        Jim, I’m sorta with ya here. At least, I can see how that interpretation of the phrase is quite likely the intended one as well as the most compelling. My point above, tho, wasn’t to argue for one interpretation against another but to suggest that consistency across the various phrases in the first amendment commits people to certain conclusions and argument structures when defending/criticizing specific views. If a person believes that the first amendment protects speech as a fully general principle then arguments quibbling over the semantics of “corporation” and so on are irrelevant since the protection applies to speech full stop. Likewise with the protections on free exercise.

        Alternatively, if the first amendment only protects the speech of natural persons and not legal fictions, then it ought to only protect the free exercise of natural persons. In other words, consistency sortamight imply that the entirety of the language of the first amendment be treated similarly.

        Which is why I brought it up, actually: if the CU ruling is based on a conception of speech rights which applies fully generally, then it seems to me that free exercise ought to be construed the same way, in which case the argument that corporate entities cannot hold religious beliefs is rather beside the point.

        Likewise, if the CU ruling is understood to be based on a conception of speech rights that apply to the material corporate body upon which legal corporate status rests, then free exercise protections ought to apply to material corporate bodies as well. (At least prima facie.)

        What seems problematic to me is for one and the same person to argue that speech rights are held by a material corporate body while free exercise rights are not because corporate entities cannot hold religious beliefs.Report

    • Avatar Burt Likko says:

      @stillwater and @jim-heffman you may find my most recent post of interest on this subject.Report

  9. Avatar Patrick says:

    James, up above, and Jon, right above, say essentially the same thing:

    For many people, their faith guides them in just about everything they do (or, at least, it generally does; we’re all fallible). If we want to put limits on this, we really need to have solid justification.

    It’s not clear to me that we are putting limits on this, in that sense that we require solid justification. Indeed, I’d argue that we already have pretty solid justification in a couple hundred years of case law.

    Essentially what you’re saying is – if I may paraphrase – “James and I (and Tim, for that matter) recognize that religious expression may conflict with a particular subset of the legal code, and believe this may cause particular, severe, problems”.

    I don’t really find that counter-argument compelling. I admit the majority decision could have addressed it, specifically, but in order for me to consider this particularly worthy of addressing, someone would have to make a more credible case than “maybe something bad might happen”.

    It seems to me that we already acknowledge, implicitly, that the legal structure of the limited liability corporation is not, in fact, generally accessible, thus the first clause of the objection is rendered moot. James said:

    With a broad brush and too little analysis they have effectively said that people of faith cannot construct a corporate form to pursue religious activities without being compelled to support activities that violate their faith.

    But, we already know that. We already know that people of faith cannot construct a corporate form to pursue religious activities without being possibly compelled to support activities that violate their faith. As zic points out, there’s a huge swath of things that we legally mandate of corporate entities, any one of which can interfere with religious expression. We have requirements on who they can hire, why they can fire people, how much they have to pay in taxes (hey, would we allow, say, a Quaker company to refuse to pay taxes on income on the grounds that they morally object to a war?), how long they can put people to work on a shift, etcetera. We have requirements for workplace safety and sanitation.

    This is a given, isn’t it?Report

    • Avatar zic says:

      We have requirements on who they can hire, why they can fire people, how much they have to pay in taxes (hey, would we allow, say, a Quaker company to refuse to pay taxes on income on the grounds that they morally object to a war?), how long they can put people to work on a shift, etcetera. We have requirements for workplace safety and sanitation.

      There is also a question of 1st amendment rights; if, under RFRA, Hobby Lobby shifts a burden to employees; Thornton v. Caldor.Report

    • “It’s not clear to me that we are putting limits on this, in that sense that we require solid justification. Indeed, I’d argue that we already have pretty solid justification in a couple hundred years of case law.”

      I’m not sure I understand this paragraph. In the first sentence you say we’re not putting limits on people’s faith, but in the second sentence you say that we have justification to put such limits on people’s faith.

      First off, I agree with you. There is solid justification to put these limits on the faith of the Greens in relationship to running HL. I’m objecting to any sort of notion that there isn’t a conflict between the Greens faith and demanding that they provide insurance that includes what they believe to be abortifacients (at the risk of having to pay a fine…that’s the other edge of the contraception mandate, right?).

      And even if it is a given that we have this justification (I don’t know if it’s a given, but it makes intuitive sense to me), that doesn’t negate the existence of the conflict in the first place.Report

      • Avatar Patrick says:

        Sorry, that came out mangled. What I mean was we implicitly already have limits on the structure of the limited liability corporation. Some of those limits may or may not conflict with sincere religious beliefs.

        I’m not saying there’s no conflict, for the Greens (there may in actually not be, but that’s not the point, really).

        I’m saying that conflicts are part and parcel with the legal structure of corporations.

        If this represents a particular religious problem for somebody, my first question isn’t “well, do we need to adapt the law for the somebody”. That seems to give religious persons a trump card when it comes to equal protection: I can always, always claim that I have a religious objection to something.

        The point of the test is to structure that, in the first place. It’s on the Greens to show that the government is creating a substantial burden to their religious expression before we even get to whether or not the government has justification, right?

        In order for that to follow, the Greens would have to show to me that it would be substantially burdensome for them to participate in economic activity without complying with the law. Now, I haven’t read all the arguments, but this seems to be the weakest part of the HL case on the HL side. It’s not argued, really, it’s just asserted.

        “I can’t be an LLC and be my type of Christian” seems particularly odd given that there are I don’t know how many LLCs out there run by I don’t know how many Christians and yet there’s one plaintiff, here. It seems to me that a whole lotta Christian-run LLCs have figured out a way to run their businesses without feeling a substantial burden.

        So the substantial burden part of the argument needs to be kind of robust.Report

    • Avatar J@m3z Aitch says:

      It seems to me that we already acknowledge, implicitly, that the legal structure of the limited liability corporation is not, in fact, generally accessible

      I don’t acknowledge that. Anyone can legally create a corporation. There are restrictions on how it can be structured, but the legal right is available to everyone, therefore is generally accessible.

      there’s a huge swath of things that we legally mandate of corporate entities, any one of which can interfere with religious expression.

      Maybe we’ve actually been doing it wrong all along. That wouldn’t be an unprecedented situation.

      I don’t really find that counter-argument compelling.

      I’m guessing (and correct me if I’m wrong) but you’re not deeply religious, at least in the way the Greens and Tim Kowal are. That level/type of faith may be wholly outside your experience, so that it’s as hard to fathom as anything else that’s wholly outside our experience. But to an important–albeit not absolute–extent, the idea underlying the religion clauses is that it’s not up to the government or the public to decide what constitutes a religious value, or to give it a wholly different valuation than the adherents do. Thus we get Church of the Lukumi Babalu Aya v. City of Hialeah, Florida, and thus do we get a veritable cottage industry of legal scholars damning Employment Division v. Smith.

      To what extent any laws–including corporate personhood–can legitimately constrain the ways in which people express their most profound religious beliefs remains an uncertain and open-ended question. Saying Hobby Lobby can’t discriminate in who it hires or choose how much it pays in taxes is insufficient, because that’s not what their religious claim is. Hypotheticals that it “might” offend some other corporate owners’ religious beliefs is unpersuasive, because they are hypotheticals–it could be that nobody’s challenged those because there are no closely held corporations’ owners who in fact do identify those as critical elements of their faith.

      Keep in mind what we’re actually asking of the Greens, from their perspective, which is to participate in the murder of humans. I think they’re wrong about that, and I’ll fight for policies that preserve the right to choice, but it’s not my or our place to force them to participate in what they define as atrocities and sins before God. In fact it’s rather an appalling thought that we would so substitute our judgement for them that we would compel them to participate in what they sincerely define as an atrocity and a grave sin.

      The argument that because it’s the corporation, not them, that is the crux of the argument. I truly don’t feel that I’ve seen this well argued by any side yet (emphasize, yet), certainly not in a way I find compelling or persuasive. I’m still open to each side of the argument, wholly on the fence.Report

      • Avatar Kim says:

        one can opt out of the corporation, can one not?
        This strikes me as very different from Amish/SocialSecurity.Report

      • Avatar DavidTC says:

        @jm3z-aitch
        Keep in mind what we’re actually asking of the Greens, from their perspective, which is to participate in the murder of humans. I think they’re wrong about that, and I’ll fight for policies that preserve the right to choice, but it’s not my or our place to force them to participate in what they define as atrocities and sins before God. In fact it’s rather an appalling thought that we would so substitute our judgement for them that we would compel them to participate in what they sincerely define as an atrocity and a grave sin.

        If the Greens don’t want to participate, then the Greens should get Hobby Lobby (Which, after all, they control) to hire someone else to operate their insurance program.

        There is way too much conflating on ‘them’ and ‘their behavior’, which somehow means both ‘the Greens’ and ‘Hobby Lobby’. Those are not the same entity.

        If a corporation has someone that is morally opposed to complying with directives from the US government, the corporation can either fire that person, or just hire someone else to do that. There is absolutely no reason that could not happen here.

        People need to stop pretending that ‘Hobby Lobby’ is somehow living inside the heads of the Greens.Report

      • Avatar Patrick says:

        Anyone can legally create a corporation. There are restrictions on how it can be structured, but the legal right is available to everyone, therefore is generally accessible.

        Well, sure. But it’s a given that corporate structure may conflict with various sorts of religious obligations.

        I’m guessing (and correct me if I’m wrong) but you’re not deeply religious, at least in the way the Greens and Tim Kowal are. That level/type of faith may be wholly outside your experience

        It’s not (to answer the second point.) Outside of my experience, that is. My own religious convictions are an aside.

        Keep in mind what we’re actually asking of the Greens, from their perspective, which is to participate in the murder of humans.

        It would appear to me that if the Greens are actually claiming this, then their actual recourse is to make employment in their company conditional upon a pledge not to use abortifacient birth control. They can thus provide medical insurance with such a provision and have clean hands, because they know their employees will not avail themselves of said implementations of such coverage.

        Since money is fungible, it is the only way they would reasonably be supposed to have clean hands, given that they pay people money. As it stands, they already have a relationship with their employees such that they may be participating in the murder of humans as they have defined it, by paying people money that they can use to get an actual abortion.

        It’s staggeringly unclear to me how requiring them to offer another, limited form of fungible compensation (one that is grossly limited, in comparison to money) adds a burden on their religious beliefs above and beyond the fungible compensation that they already offer to their employees that is more fungible than the additional compensation they are now required to offer.

        (Indeed, we allow this. You can be fired from BYU as a faculty member if you’re seen drinking alcohol recreationally.)

        Specifically – zic talked about this on another thread about PPACA and I’m inclined to agree with the way she framed it – the owners of Hobby Lobby is asking for the legal right to decide, for themselves, what someone else considers to be medical insurance.

        I’m not sure that’s a religious freedom issue.

        To what extent any laws–including corporate personhood–can legitimately constrain the ways in which people express their most profound religious beliefs remains an uncertain and open-ended question.

        That’s fair enough, I suppose.Report

      • Avatar Patrick says:

        Stupid analogy to make the point as clear as possible.

        Let’s say everyone is paid wages in nuclear bombs, because we used nuclear bombs as our unit of money. Nuclear bombs are as fungible as cash.

        Now we require someone – in addition to paying someone in nuclear bombs! – to add a small dagger to their wages.

        And somebody says, “But this dagger could be used to kill someone!”

        Well, duh. Sure. But you already pay people in bombs.Report

      • Avatar Jim Heffman says:

        The contraceptive benefits can’t be used by anyone other than the employee and can’t be used for anything other than contraception. So for your analogy to be accurate, the added “payment” would have to be in knifing-people services.Report

      • Avatar Patrick says:

        … can’t be used for anything other than contraception.

        This is factually incorrect. I think maybe the women in the commentariat may have pointed this out a couple of times in the past.Report

      • Avatar Jim Heffman says:

        Please stop pretending like the off-label uses of these hormone therapies are a meaningful factor in this discussion. The use in question is for contraceptive purposes.Report

      • Avatar Patrick says:

        Please stop pretending like the off-label uses of these hormone therapies are a meaningful factor in this discussion. The use in question is for contraceptive purposes.

        The American College of Obstetricians and Gynecologists disagrees with you, old bean.Report

      • Avatar Kim says:

        Jim,
        all due respect, but Veronica Dire might say differently. She is, after all, using some of these hormones to deal with the remarkable inconvenience of being born with a weird gender. [n.b. if this offends, i do apologize! sincerely not meant, and would appreciate correction.]

        I think it is extremely relevant, because the same religious beliefs that say “no to abortion” also say “no to sex changes” (or at least might).Report

      • Avatar Mike Schilling says:

        Please stop pretending like the off-label uses of these hormone therapies are a meaningful factor in this discussion.

        Because that would mean that Sandra Fluke had a point other than wanting her sex life paid for.Report

      • Avatar Jim Heffman says:

        “The American College of Obstetricians and Gynecologists disagrees with you, old bean.”

        Thank you, snarkster, I was aware of that, but the matter at hand is related to contraception.Report

      • Avatar Patrick says:

        snarkster

        I’m suffering from an overwhelming case of you’ve got to be kidding me.Report

      • Avatar Stillwater says:

        Rove once famously said “You have your facts, I have mine.” End Of Discussion!Report

      • Avatar Bill O'Reilly says:

        Patrick, please lower your voice. Let’s discuss this calmly and rationally.Report

  10. Avatar Saul DeGraw says:

    I agree with the majority in outcome but I would also add this. I am going to be brief.

    One of the main reasons and benefits for forming a corporation (whether closely-held or public) is to separate private assets from corporate assets and separate private liability from corporate liability. There is nothing wrong with this policy and I think the reasons behind it are sound and good.

    It seems to me that the Greens’ want all of the benefits of a corporate status with non of the responsibilities or duties in return. Also known as that great human condition of wanting it both ways.
    There is a real danger for a slippery slope here in my view towards completely gutting all worker-protection laws in the names of some kind of conscious or liberty. The price for this should be the piercing of the corporate veil.

    There are business entities that would allow people more control over their companies/businesses. These are the sole propietership and the partnership. I don’t see why it is fair or moral to give someone all the benefits of incorporation while having them give nothing in return.

    This possibly more of a philosophical, ethical, and moral analysis than a legal one.Report

    • “I agree with the majority in outcome but I would also add this. I am going to be brief.”

      *RIMSHOT*Report

    • Avatar Stillwater says:

      Also known as that great human condition of wanting it both ways.

      Absolutely. But the sticky issue is constructing a principled, constitutional, and justified argument for denying them their desire to have it both ways. Merely asserting that fictional personhood in the form of limited liability status constitutes a barrier between the religious convictions of owners and the outside world doesn’t quite get the job done, it seems to me. Quite the opposite. That’s what requires justification.Report

  11. Avatar Brandon Berg says:

    What about Citizens United? The logic there was that shareholders maintain and can collectively exercise their right to free speech through corporate action. Does the same logic not apply here?Report

    • Avatar Stillwater says:

      I sorta agree with this. Or, I should say, I’m having trouble disagreeing with this. It seems to me that the ruling in CU can be justified in two ways. The first is that material corporate bodies (as opposed to abstract, fictional entitites like LLCs) have the right to express themselves and that right is protected by the first amendment. The second is that the speech protections accorded by the first amendment are fully general and apply to any and all types of speech (even including the speech of “fictional” entities).

      Applying either type of justification to the Hobby Lobby case leads to the conclusion – at least prima facie – that first amendment protections on restrictions of free exercise apply to the material body which forms the corporate entity known as Hobby Lobby (irrespective of LLC status).

      FWIW and all that. I’m not a lawyer or legal scholar. But I play one on the internet.Report

    • Avatar Burt Likko says:

      I’ll have a personal postscript going up in a few hours addressing Citizens United. I think Citizens United was decided correctly but not for this reason.Report

  12. Avatar MyNameIsNotRelevant says:

    A few issues with this article:
    The “political debate” over “whether corporations are ‘people’” is what One might call a “conceptual mirage”; while the court has ruled corporations qualify as “legal persons”, at no point, despite the claims of Others to contrary, has the Supreme Court ever declared corporations to be “people”.
    The Author then conflates “religious exercise” with “religious belief”. The Religious Freedom Restoration Act (RFRA) defines “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief”. If “religious exercise” were synonymous with “religious belief”, the definition would be circular and the definition provided in RFRA would be nonsensical. Therefore, the two terms cannot mean the same thing.
    The Oxford English Dictionary provides two definitions of “exercise” which are relevant in this context: (1) an activity carried out for a specific purpose and (2) the use or application of a faculty, right, or process. The word “religious” in this context would then help to characterize the activity/use/application in question.
    The concern raised in the footnote about Equal protection claims appears to be a “Strawman”. While None of the Objectors in these cases in any brief I have read have raised such a claim, the lack of raising to date does not preclude the raising of such an argument in future proceedings. At the same time, the reason such comparisons by Objectors of non-profit and for-profit corporations have been raised is to show a corporations is fully capable of exercising religion and raising a related claim.
    Additionally, the claim “non-profit corporations … lack shareholders” is erroneous; while non-profit corporations TYPICALLY do not have shareholders, excepts like the Cato Institute exist. However, even if such were true, the presence or absence of Shareholder (or “partial Owner”) is not dispositive with respect to religious exercise under any generally accepted legal theory: partnerships can exercise religion, the administration does not dispute this fact, Partners in a partnership are partial Owners just as Shareholders in a corporations are partial Owners of said corporation.
    The Author, after acknowledging the lack of need to distinguish between entities which “might be considered in some manner inherently religious” and those which are not, then proceeds to simply re-iterate a position backed only by the previously demonstrated erroneous claims: “we need only consider … whether general corporations … possess the attribute of having inherent religious belief … They do not.” However, this procession, in addition to conflating “exercise” with “belief” again, essentially says, “We don’t need to answer this question now but We are going to answer the question now as if We have already answered the question,” circular logic at its roundest.
    The Author then concludes, using the aforementioned circular logic, even if Hobby Lobby is considered to be a person for purposes of RFRA, which would require the ability to engage in religious exercise, Hobby Lobby is incapable of articulating a religious belief and therefore cannot state a claim under RFRA et al. However, since the Author repeatedly conflates “exercise” and “belief”, presuming the ability to engage in the former should also mean an ability to engage in the latter is presumed as well. What’s more, based one the said circular logic, the Author presumes the conclusion to be true instead of demonstrating the conclusion to be true. Lastly, under this logic, corporations would be incapable of engaging in speech of any kind, in direct conflict with years of judicial precedent stretching back to Bellotti, if not earlier.

    I also take issue with the “dissenting opinion’s” description of religious liberty as the right to “work out their own salvation in fear and trembling” because Many of Us exercise religion not out of “fear and trembling” but reverence and Love.Report

    • Sometimes, the law attempts to discuss faith. That the law has insufficient language to fully do so is not a failure of faith.Report

    • Avatar DavidTC says:

      Additionally, the claim “non-profit corporations … lack shareholders” is erroneous; while non-profit corporations TYPICALLY do not have shareholders, excepts like the Cato Institute exist.

      Non-profits do not have shareholders by definition. They have members.

      The Cato Institute is not an ‘exception’ to the law, it is simply abusing the word ‘stock’, or abusing the non-profit statues.

      The Cato Institute has, confusingly, decided to call it’s memberships ‘stock’, and make memberships behave like stock, including having one vote per ‘membership’ and allowing people to hold multiple memberships (Which is indeed legal) and making these memberships transferable via reselling and inheritance. (Which is, uh, not legal, as far as anyone can tell, although that’s a weird gray issue. Memberships in non-profits are not supposed to be considered property.) and apparently have distributed payments directly to the members proportional to the amount of memberships they own. (Which is flat out, 100%, completely utterly illegal. That is literally a violation of the concept of ‘non-profit’.)

      That does not actually mean it does have stock.

      Or, alternately, it isn’t a non-profit at all, which appears to be the view that the IRS has started taking.

      So, no, non-profits do not have stock. Period.Report

      • Avatar DavidTC says:

        Oh, and I find myself completely baffled by your attempt to make that point. While non-profits don’t have stockholders, they do have owners. Their members own them.

        Its just that, unlike for-profits, their owners cannot transfer money out of the non-profit to themselves. That is, in fact, the difference between an ‘stockholder’ and a ‘member’. Stockholders are entitled to a portion of the corporate profits, members are not. (The ‘profits’ of a non-profit, if the non-profit feels like distributing them, can only be distributed to other non-profits.)

        (Which is why Cato’s strange idea of calling members ‘stockholders’ is not just being ignored by the IRS, considering Cato profits *are* accruing to their owners. It’s not just some fancy mis-naming. Their membership are serving the entire purpose of stock. It’s like the people who set up Cato literally did not understand the concept of a non-profit, and thought that 501(c)(3) was just a place you could put normal corporations so they didn’t pay taxes.)Report

      • Avatar Mike Schilling says:

        But they’re libertarians, so they have a religious conviction against paying taxes.Report

    • Avatar Burt Likko says:

      In order to exercise one’s religion, one must first possess religious beliefs.

      Consider: I am an atheist. I can go to a Roman Catholic Church for Mass. I can say the words, eat the cracker, drink the grape juice. That doesn’t mean I’m engaged in a religious exercise because internally, I don’t believe in what’s going on. To me, it’s a bunch of words and kneeling and standing up and sitting down and shaking hands and that thing the priest dispenses is a cracker. (Why would I do such a thing when I don’t believe in the supernatural and could have been home playing video games? To please my very religious grandmother, of course.)

      To a Catholic, that’s not a cracker in that basket, and that’s not wine in that chalice. They are the literal flesh and blood of Jesus Christ, and partaking of them is a form of communion and unity with the divine.

      Were I, the atheist, to conceal the host and later throw it away, no big whoop. To me, it’s just a thin piece of bland bread, after all. But to a believing, faithful Catholic, I have just desecrated the divine made manifest: a very big whoop indeed.

      Now imagine a law that, one way or another, prevents people from going to mass and participating in this ritual. Doesn’t much matter what that law is or why it exists. This law prevents me from eating a cracker. Not a big deal. I’m not Catholic; I have no religious belief in the divinity of a cracker to impair. I cannot state a claim under RFRA because I lack the sincere religious belief that the ritual of the Eucharist is the literal communion with the divine. But a law preventing a Catholic from taking holy communion — that would be a substantial impairment upon the Catholic’s ability to exercise her religious faith. The Catholic can state a sincere religious belief in the sacred nature of the Eucharist (meeting the first prong of the RFRA test) and a law preventing her from participating in the ritual would substantial impair her ability to exercise that belief (meeting the second prong of the RFRA test).Report

  13. Avatar Tim Kowal says:

    NOTE: My dissent above is actually an early draft. The final version of my dissent to Part II and concurrence to Part III can be found here: https://ordinary-times.com/blog/2014/04/15/sebelius-v-hobby-lobby-stores-parts-ii-and-iii-dissenting-and-concurring-opinion.

    Sorry for the confusion.Report

  14. Curiosity, has anyone evaluated what the economic impacts of Hobby Lobby closing on Sundays, for example, might be? If they’re going to make a monetary argument about not providing health insurance, shouldn’t it be evaluated whether or not that argument is equal to, or at least similar to their already voluntary measures taken as part of their religious faith?Report

    • Avatar zic says:

      Here’s Green’s calculation — he does not provide a unit of time for the calculation:

      The Greens and their lawyers often point out that Hobby Lobby doesn’t open its stores on Sundays. That decision came more than two decades after the family began doing business. Green closed on Sundays for the first time in 1998, starting with three stores in Nebraska. “I didn’t have the courage—or faith—to shut down on Sunday all at once,” he wrote. He calculated that Hobby Lobby did $100 million in business on Sundays.

      source: http://www.businessweek.com/articles/2014-04-03/hobby-lobby-case-does-god-hate-obamacare#p2Report

      • So how is that voluntary choice different compared to the burden it would create by voluntarily not offering health insurance? I guess I’m just not understanding how you can square that circle.Report

      • To clarify:
        Since in their petition they declare that it would cost “from $26,000,000 per year to $475,000,000 per year” shouldn’t there be some burden on Hobby Lobby’s part that this particular burden is substantially different in both scope and size from their voluntary activities that reduce revenue? That is closing on Sundays/holidays and not selling goods they consider to be bad like alcohol paraphernalia.

        So if they’re willing to eat at least $100 million/year for not operating on Sundays, why aren’t they willing to eat a similar amount by not providing health insurance coverage?Report

      • Avatar J@m3z Aitch says:

        shouldn’t there be some burden on Hobby Lobby’s part that this particular burden is substantially different in both scope and size from their voluntary activities that reduce revenue?

        Not that I can see. Just because I voluntarily forgo some possible gains does not mean I have no legitimate objections if a government entity compels me to forgo yet more gains. By what logic would the latter possibly follow from the former?

        If I voluntarily refrain from eating pork, despite my love for it, that in itself would legitimate a gov’t agency barring me from also eating beef, unless I could show how the two dietary restraints are very different?Report

      • Well, first, we’re not stating that they don’t have the option of not providing health insurance at all. Indeed the very grounds of which Hobby Lobby is making its argument is that they want to keep providing health insurance, but they want to be able to define what’s covered, rather than the government. That is to say, their argument is that they should be allowed to skirt the costs of an action because it’s a religious one.

        This strikes me as bizarre if they’re already doing things that cost them money to follow their religious beliefs. What makes this substantially different? Here they’re basically arguing that instead of paying for that cost themselves, they’re trying to force the government to off-load that cost to their employees.

        Their explicit argument appears to be that it’ll cost them money to not offer health insurance at all and instead pay the tax/fine.

        This would be more akin to stating that since you don’t drive a car out of personal conviction, the government should then pay for your train fare as well.Report

      • Avatar J@m3z Aitch says:

        Nob,
        You’re conflating a self-imposed cost to follow your conscience with a compulsory fee to follow your conscience. I don’t know how you can so casually conflate those two things.Report

      • Because I don’t see it as a compulsory fee, but rather a business decision based on the tax structure imposed by employer provided health insurance.

        Again, how is this different from demanding that the government give you free mass transit fare? Is it a compulsory fee to you if you have to pay to use the train or the bus because you lack a car? Isn’t that a choice to make use of one form of transportation over another based on your personal conviction?Report

      • Avatar J@m3z Aitch says:

        The government won’t let them walk, skateboard, ride a bike, or roll down the street in a giant gerbil ball.

        I just don’t think the “not a compulsory fee” argument holds water. Call it a tax structure, sure, but it’s a price and it’s compulsory–the name you attach to it may sound better, but doesn’t change it’s inherent nature. You will buy a bus ticket, you will not stay home or walk. Sounds compulsory to me.Report

      • I’m not sure what you’re arguing now, James. So basically conscience exemptions should be made to every single law under the sun because to do otherwise would make it compulsory to follow them?Report

      • Not sure of the legal or judicial importance here, but the cost of not having insurance is not labeled a “taxes” or a “fees” but rather a “penalties.”

        The strongest argument against Hobby Lobby is that the penalty isn’t remarkably injurious and there is a relatively straightforward way for folks to stay true to their conscience. But… the word “penalty” here doesn’t help. I’m not sure legally how significant it is or isn’t. It’s just that in common tongue that word is more typically associated with punishment than the word “tax” or even “fee” is.Report

      • On further reflection, I guess this is a hang-up of mine. Roberts ruled that tax vs penalty doesn’t matter in the individual mandate, so it’s not clear why the verbiage should matter here (although there are other distinctions that can lead to a different result).

        I think I’m still just a little irked about how before it needed to be a tax the people who were calling it a tax were called bad things. Perhaps they shouldn’t, in the legal realm, but it’s irritating when words don’t actually matter.Report

      • Avatar J@m3z Aitch says:

        Nob,

        No. I’m arguing that conflating compulsory action with voluntary action is a category error that would make Orwell nod in recognition. Even if there are hard borderline cases–there always are, in everything–the distinction cannot be collapsed without beggaring logic and collapsing the foundations of the western legal tradition.

        [Addendum: the talk about bike riding, etc, was meant to point out the crucial error in your analogy. You said the person voluntarily forgoing a car would effectively be forced to buy a bus pass. But that is not true. The government does mot forclose their other opportunities and require a payment. And this is mot like demanding the government give you free train fare because HL is not demanding the government pay for anything. Rather, it’s like the case of a person who does not own a car and dislikes motorized transit altogether being told they must psy for it anyway. HL would be fine if the gov’t paid nothing, and these particular contraceptives were wholly the responsibility of the women who want them. The payment demands are wholly on the part of the gov’t, not HL. I think your analogy is structurally so unlike the actual situation that it confuses the issues rather than helping to make sense it.]Report

      • Avatar J@m3z Aitch says:

        @will-truman

        Words can be used to obfuscate as well as clarify. As a rose by any other name would smell as sweet, renaming the emissions from my mutt’s rear end “dog flowers” would not change their essential nature.Report

      • James, I think there’s a couple things you’re neglecting in both your analogy and your argument in general, but the largest one here is that this isn’t simply a binary two-party transaction, but government mediation in a transaction between the employer and employee.

        I think your analogy about foreclosing other potential avenues is flawed, one because the list of available alternatives is in fact more limited than your analogy would suggest. Second, we’re talking about a situation where the employer is demanding that it be given a right to foreclose access to a service for its employees while still getting credit for providing a form of compensation that it is limiting. If this were solely about the Green family stating it would be against its religious beliefs to offer whatever it considers to be abortifacents, then that’d be one thing. It’s another thing where it would effectively use the law to foreclose the ability for its own employees to make use of the same.

        As I’ve described before, the law in question is that employees are NOT eligible for subsidies on the exchange if the employer provides a health insurance option that meets the necessary criteria. By demanding that they be allowed to not offer certain things within health insurance they disagree with, they’re removing the choice from the employee on whether or not they get coverage for the things the Greens find questionable.

        In addition, they do this through limiting the employee’s compensation in lieu of paying the taxes (which would be necessary to help the employees get subsidized health insurance on the exchanges) that would enable their employees to simply make the choice themselves through fungible compensation they provide.

        This strikes me, fundamentally, as a much different equation than simply saying “they’d be happy if the government paid for nothing at all”, because it’s not true.

        Effectively they’re requesting that employees shoulder the costs of their choice rather than shouldering it themselves. This would be akin to demanding that employees work for free on Sundays, because their religious beliefs prevent paying on Sundays.Report

      • Avatar J@m3z Aitch says:

        the employer is demanding that it be given a right to foreclose access to a service for its employees

        No. They are demanding (or asking, depending on one’s perspective) that they not have to provide that access. That is not foreclosing access, which would mean trying to prevent them from gaining access through other routes. It cannot be denied that it has an effect of access limiting, but let’s be careful with language and not fall into binary fallacies.

        As I’ve described before, the law in question is that employees are NOT eligible for subsidies on the exchange if the employer provides a health insurance option that meets the necessary criteria.

        Of questionable relevance. If (emphasis if) this is a religious freedom issue, a badly written law cannot be the basis for denying free exercise.

        I am really struggling with that latter line of thought, as I see it emerging from a number of other people here as well. There seems little concern at all about the government imposing particular constraints on people, but the moment someone’s own conscience creates some shifting of that constraint–that burden–to someone else, the concern emerges, and there’s little evident recognition that the burden was ultimately created by the government, not by the conscientious person.

        That is, the government created a burden on John Smith’s conscience; he cannot in good faith accept it; his conscientious refusal inevitably shifts the burden to someone else. We then condemn John, but don’t seriously ask the question of the legitimacy of creating the burden on conscience. I don’t find that to be a thorough analysis.

        I do think a logical argument can get to a claim that the burden shifting is not allowable (I sort of made that claim myself in response to zic last week). But I think the logic of the argument is vastly weakened if it just assumes the legitimacy of creating the burden on conscience, rather than seriously addressing it.

        As to a prior question you asked, about whether all claims of conscience would stop the application of all laws, that was something of a slippery slope argument, wasn’t it? I’ve repeatedly stated that laws make distinctions. Even though I am unsure just what those distinctions would be, or the valid principles on which they would be based, I can assert with absolute confidence that 1) theoretically, logical distinctions are ascertainable and 2) empirically, would–logical or not–be applied by the courts.Report

      • If we move to the root of the question, the burden on conscience (at least in this case) was created by an institutional and structural history where women were treated differently on the basis of their gender and as a consequence, government regulation was implemented to help redress that balance. There’s an argument to be had whether or not this is fair as the current holders of power may or may not have been involved in creating that imbalance, but the reality is that women’s reproductive health choices have, in general, been considered to be inferior in priority and status to men’s health in a broad range of areas, including health insurance coverage. That the minimum definition of “health insurance” be expanded to include what is basic for a woman, but not necessarily so for a man, is the question here.

        Now as to that specific burden, John Smith in your example could meet the government’s definition in (at least) one of two ways.

        1) John Smith can provide health insurance to his employees that meet government criteria.
        2) John Smith can decide not to provide health insurance, thereby having the employees be covered (with government subsidies) on the state/federal exchange.

        In the case of 1) John Smith covers the cost entirely, while in the case of 2) the government requests that John Smith pay an additional tax to offset the subsidies given to the employees. Note that 2) has a sub-cost associated with it, in that John Smith would presumably also have to increase base compensation to make up for a benefits package that does not include health insurance.

        When we shift toward whether or not John Smith can exercise his conscience in not providing a form of compensation to his employee (which he views as morally objectionable) then we note that he has a range of options which are based out of the two choices available above:
        1a) John Smith provides health insurance that covers the disputed procedure, but like some employers requires that the employee sign a code of conduct wherein they certify that they will not use the products John Smith believes are abortifacents and that they could be terminated if it is revealed they do so. (This sort of contract has, to my knowledge, been legal for institutions like BYU)
        1b) John Smith tries to challenge the law so that he can provide insurance that doesn’t match the minimum requirements. Note that in this case the cost of provisioning care then shifts to the employee, who, in addition is no longer eligible for subsidies on the exchange. (Ergo: All of their contraception costs might be required to be paid out of pocket)
        2) John Smith does not offer health insurance at all, pays a fine/tax/assessment of $2000/employee per year, while the employees remain eligible for federal subsidies to purchase their own insurance plans.

        The question for me becomes: “Why 1b?” Is there something about that particular solution that is more morally acceptable in your view than 1a? Why is it okay for John Smith to require a burden shift to the employee as a matter of dictate rather than as a condition of employment? Does John Smith believe that restricting access via code of conduct would have a detrimental effect on his ability to hire and retain talent? And in that case, wouldn’t doing 1b also be in essence a bait and switch?Report

  15. Not to get into absurdities, but this basically sounds like they’re arguing that the government’s doing them a disservice by not mandating that all retail chains close on Sundays, because well, that’s their religious choice and everyone else should pay for it.Report

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