Big Monday 2014

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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302 Responses

  1. Avatar DavidTC
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    says:

    But on the big existential question, the Court seems to have held that a closely-held corporation can indeed adopt the religion, or at least the religious beliefs, of its owners.

    Does it specifically say owners?

    Because, technically, speaking, it’s not actually the owners that decide what sort of insurance a company would provide…it’s the corporate officers.

    This ruling turns into absolute nonsense with any corporation that does not have the owners, board of directors, and officers be the same people. Which means it’s blatantly nonsense to start with.Report

    • Avatar Will Truman in reply to DavidTC
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      says:

      This ruling turns into absolute nonsense with any corporation that does not have the owners, board of directors, and officers be the same people. Which means it’s blatantly nonsense to start with.

      My interpretation of closely-held is that such an arrangment is unlikely to be such, or that ultimately the officers and BoD would be answerable to the owners and their preferences. Can a lawyer or knowlegable business-type here clarify?Report

      • Avatar Mo in reply to Will Truman
        Ignored
        says:

        This is correct, corporate officers act as agents of the corporation.Report

      • Avatar Burt Likko in reply to Will Truman
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        says:

        I’ve many small business clients like this. 99 times out of 100 the owners elect themselves as the directors and then as directors, they appoint themselves officers. So they wind up wearing all three hats at once.

        In the rare instance when some other person is brought in to the upper-level management structure who is not an owner, that is someone personally known to the owners and who possesses substantial expertise in the subject matter area of the business’ principal activities. In that case, if the non-owner executive does something the owners don’t like, it’s just a matter of getting the owners together and signing the right kinds of forms to have a meeting to fire the executive. So they’re always on a pretty short leash.Report

      • Avatar James Hanley in reply to Will Truman
        Ignored
        says:

        99 times out of 100 the owners elect themselves as the directors and then as directors, they appoint themselves officers. So they wind up wearing all three hats at once.

        And that’s why, in my opinion, the ruling is not nonsense. I don’t think it’s necessary that we distinguish only two types of businesses (sole proprietorships and corporations) for these purposes. I think the notion of a third type that stand partway between is intellectually justifiable. Extending the ruling to a true public stock corporation would be nonsense, but throughout the series of posts here at OT analyzing the case I remained unpersuaded that it would be nonsense to rule this way for a closely held corporation.Report

    • Avatar Burt Likko in reply to DavidTC
      Ignored
      says:

      See pages 20-25 of the majority opinion. @davidtc ; Alito basically asks “Why can’t a for-profit corporation engage in the exercise of religion? And he looks at the answers given him in the briefs and the dissents, and says that none of these suggest that it can’t. We know that a sole proprietorship can exercise religion, by another case called Braunfeld v. Brown (1961) 366 U.S. 599. So why not a corporation with only a few owners? Since exercising religion is lawful, and a corporation can be organized for any lawful purpose, A for-profit corporation can engage in the exercise of religion.

      Now, before you say “exercise of religion” isn’t the same thing as “holding a sincere religious belief,” which is the test under RFRA, Alito anticipates your objection and points you to this bit from Smith, the famous peyote case:

      …[E]xercise of religion” involves “not only belief and profession but the performance of (or abstention from) physical acts” that are “engaged in for religious reasons.” Smith, 494 U. S., at 877.

      But yes, Alito mainly focuses on the owners, rather than the officers or directors, of the closely-held corporation. He seems to presume that the owners in almost every case will make themselves the officers and directors (and I think that’s a safe assumption) and even if they do not they will over time exercise their ownership interest to elect directors who will hire officers to govern the corporation as they see fit.Report

      • Avatar DavidTC in reply to Burt Likko
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        says:

        He seems to presume that the owners in almost every case will make themselves the officers and directors (and I think that’s a safe assumption) and even if they do not they will over time exercise their ownership interest to elect directors who will hire officers to govern the corporation as they see fit.

        And, of course, hiring corporate officers because they have the same religious beliefs as you, and firing them because they do not, is entirely legal.

        Wait, what?Report

      • Avatar Jim Heffman in reply to Burt Likko
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        says:

        Alito’s opinion also takes into account the fact that persons inexperienced in business law might not understand that there could be a distinction between an “owner” and a “director” as regards corporate governance.Report

      • Avatar Mike Schilling in reply to Burt Likko
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        says:

        Firing officers because they impose religiously-based rules on the employees is perfectly legal.Report

      • Avatar Will Truman in reply to Burt Likko
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        says:

        You may not be able to fire an officer for having a different religion, but you may be able fire them for failing to do what you tell them to even if religious in origin. Close the stores on Sundays, don’t serve beef in the cafeteria, don’t hire smokers, etc. No? You’re fired.Report

      • Avatar DavidTC in reply to Burt Likko
        Ignored
        says:

        @will-truman
        You may not be able to fire an officer for having a different religion, but you may be able fire them for failing to do what you tell them to even if religious in origin. Close the stores on Sundays, don’t serve beef in the cafeteria, don’t hire smokers, etc. No? You’re fired.

        Except that the argument used here is literally that refusing to provide contraceptive insurance is an exercise of religion. It is literally a religious practice.

        Claiming it’s a religious practice, and then demanding your corporate officers participate in it, and fire them if they don’t? Refuse to hire people who don’t participate?

        Wow, good luck with that lawsuit.Report

      • Avatar Will Truman in reply to Burt Likko
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        says:

        Because something is a religious act to one doesn’t make it necessarily an inherently religious act. That applies to all of the examples that I gave, and can easily apply to refraining from giving contraceptive coverage.

        I used to work as the solo IT person for a boss/owner who was a very, very religious man. Part of my job was editing and printing his religious tract. His writing it, and his having it edited, was an expression of his religion and faith. My work on it was not. It was just a part of the job.

        It would have been different if he’d demanded that I go to church with him on Sunday. So there is a line there somewhere. It’s not nonsensical to say “Will not provide contraceptive coverage to our employees” isn’t on the church-on-Sunday side of it. [edited for clarity]Report

      • Avatar DavidTC in reply to Burt Likko
        Ignored
        says:

        It would have been different if he’d demanded that I go to church with him on Sunday. So there is a line there somewhere. It’s not nonsensical to say “Will not provide contraceptive coverage to our employees” isn’t on the chuch-on-Sunday side of it.

        Yes, you would be accurate, *if such a thing wasn’t demanded under the law*.

        I agree completely with you about religious things in general. Officers can’t refuse to not operate a store on Sunday, or even refuse to operate it on Sunday. Because opening a store on Sunday may be relevant to the owner’s religion, but it’s simply the employee’s job duties.

        However, to get a religious exception to the ACA, it must be the *corporate* belief. When the corporation does it, it must be doing it as an *exercise of religion*. It’s not just some random thing where they’ve decided that contraceptive coverage is not a worthwhile benefit, they *only* get the exception if they’re withholding it as a religious exercise.

        And it’s, probably, the CFO who must sign off on such a thing. Some corporate officers, certainly. Not the owner. The CFO. He must sign a piece of paper stating he’s doing this as an exercise of religious beliefs. Not his own beliefs, mind you, but the corporation’s beliefs.

        It’s akin to ordering a non-Catholic employee to go to Confession and confess corporate sins there. It doesn’t matter that it’s being doing in the name of ‘the corporation’ instead of the employee…it’s still forcing them to commit an exercise of religion which they might not agree with. In the case of contraceptive denial, it’s making them do what the company *literally admits* is an exercise of religion. (If they didn’t admit that, they wouldn’t get get the exception!)

        And now that it’s actually become a ‘corporate exercise of religion’, what happens in the corporations where the *owners* want to provide such insurance, but the person in charge of selecting the insurance policy *doesn’t*?Report

      • Avatar DavidTC in reply to Burt Likko
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        says:

        Or to put it more simply: Corporate actions, just like all actions, are generally presumed to be religiously neutral. A business not opening on Sundays is not an exercise of religion. The owners might have wanted it because *they* were religious, but the act, itself, is not religious.

        Of course, sometimes they *aren’t* religiously neutral (I.e., a hypothetical gas station that made all employees eat a ham sandwich when they got to work.) but such a thing has a fairly high bar.

        The problem is, with this act, with this exception, the only way it exist is that the corporation must argue it *is* a religious act. They have to say it is, specifically, and quite literally, an exercise of religion. They’re pretty much explicitly destroying any presumed neutrality. They’re confessing to the lack of neutrality!

        Which raises all sorts of religious discrimination issues. And not just at the corporate officer level. Ones in which people would barely have to prove in court, because there’s a damn written confession.Report

      • Avatar Jim Heffman in reply to Burt Likko
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        says:

        “Yes, you would be accurate, *if such a thing wasn’t demanded under the law*.”

        Except it wasn’t demanded under the law until very recently. It’s not like the contraceptive mandate existed for hundreds of years and only now is anyone getting around to challenging it.Report

      • Avatar DavidTC in reply to Burt Likko
        Ignored
        says:

        @jim-heffman
        Except it wasn’t demanded under the law until very recently. It’s not like the contraceptive mandate existed for hundreds of years and only now is anyone getting around to challenging it.

        Erm, you entirely missed the point. The thing *I* was talking about wasn’t demanded under the law until today.

        My point was that, to avail yourself of this new exception the court invented, the corporation have to state that providing contraceptive coverage (Or refusing to do so.) is the corporation exercising a religion belief.

        Which, of course, means it would be the corporation telling the employees to exercise a religion belief. (Corporations do not have telekinesis.)

        The corporation is now literally asking their employees to practice a religion on their behalf. That’s what the corporation itself is saying it is doing in a signed document to the government, under oath. Those are the actual words coming out of the mouth of Hobby Lobby and any corporation that avails itself of that: We order employees to practice this specific exercise of religion.

        So, wow. Just wow. That has so many horrific ways to backfire on the corporation it’s almost surreal.Report

      • Avatar Burt Likko in reply to Burt Likko
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        says:

        @jim-heffman :
        “Alito’s opinion also takes into account the fact that persons inexperienced in business law might not understand that there could be a distinction between an ‘owner’ and a ‘director’ as regards corporate governance.”
        Which pretty much makes it nearly unique in the law of corporations. For most of us, ignorance of the law is no excuse for disobedience, and that includes the owners of closely-held corporations. Minority owners of small business are able to murder leverage their ownership interests in small business disputes through things like derivative actions which specifically attack on majority owners allowing those distinctions to become blurry through casual practice.

        @davidtc — I don’t think it’s accurate to say that Hobby Lobby exercising a religious belief against the purchase of (what it believes to be, mostly incorrectly so far as I can tell) abortifacents is the same thing as requiring its employees to conform to that religious belief. They can purchase those drugs with their own money and use them on their own if they wish, and we have no evidence before us that should they do so there will be any adverse employment action taken against them.Report

      • Avatar DavidTC in reply to Burt Likko
        Ignored
        says:

        @burt-likko
        I don’t think it’s accurate to say that Hobby Lobby exercising a religious belief against the purchase of (what it believes to be, mostly incorrectly so far as I can tell) abortifacents is the same thing as requiring its employees to conform to that religious belief.

        I’m having a lot of trouble getting my point across, I guess. I’m not arguing anything about beliefs, I’m pointing out corporations saying ‘This action we are doing (Aka, telling employees to do doing) is an exercise of religion’ is epically stupid. Let me try syllogism.

        Premise 1: A corporation claims that the purchase, or lack of the purchase of insurance, with contraceptives in it is a religious exercise. (I suspect they’re basically going to have to sign the same form as religious non-profits.)
        Premise 2: Corporations do not have magical ‘signing document’ superpowers. Everything ‘a corporation’ is does literally something done by the hands of their employees, that they have directed that employee to do.
        Conclusion 1: They have just directed an employee to do something they themselves admit is a religious exercise.

        Premise 3: Discrimination on the ground of religion is illegal.
        Conclusion 2: Corporations who do this are standing on pretty goddamn dangerous ground. It is not ipso facto religious discrimination to ask an employee to do a religious exercise, but wow. If they refuse, or want to do some other religious exercise instead, and they’re fired for it…wow. Seriously. Think about that for a second in terms of lawsuits.

        Premise 4: Thanks to this case being about rather indirect things to start with, there’s really no reason to limit the directness.
        Conclusion 3: Some random person who works in account receivable and told to print a check to insurance companies could easily argue that *they* are being told to participate in this admitted religious exercise.

        Or, and here’s the real kicker, *anyone who gets said insurance*. They are being asked to participate in the act of ‘failing to provide contraceptives’, an action that the corporation claims under oath is a religious exercise.Report

      • Avatar DavidTC in reply to Burt Likko
        Ignored
        says:

        Or maybe I need an example. Let us pretend, for a moment, that I actually do work in accounts receivable at Hobby Lobby, and I have a religious belief that it is morally *wrong* to not use contraceptives.

        I am directed to issue a payment to Hobby Lobby’s insurance company.

        Now, normally, I’d have to do this. Normally, as I said above, corporate actions are basically assumed to religiously neutral. I don’t get to ask why we picked that insurance company or that plan, and I had to do my job anyway.

        But now I live in a world where Hobby Lobby has sworn, under oath, that selecting such a insurance company is a exercise of religion. That *not* paying for contraceptives is an exercise of religion.

        Well, if not paying for it is an exercise of religion, than I refuse to participate in that exercise of religion, the same way I refuse to participate in, say, a Satanic mass. The company can certainly spend their money on a Satanic mass if they want, but they can’t make me join in. So I refuse to do my job and issue payments that insurance company.

        And I am promptly fired. For not participating in an *admitted* exercise of religion.

        Pretty damn winnable lawsuit time, if they claim I was fired for refusing to do something that they themselves claim is an exercise of religion. (Or not hired because I said I wouldn’t do that.)

        Corporations get away with ‘religious rules’ because corporations can have religious beliefs, or at least rules that clearly originate from religions. What they *can’t* have in a world where lawsuits exist, is stating that a specific thing they do is actually an *exercise of religion*, especially not something that touches all employees, because such a thing is millimeters away from discriminating on the basis of religion.

        It’s somewhat akin to a company asserting their free speech rights by issuing a ‘pro-discrimination statement’ saying that they loathe black people and consider them subhuman. Just because that statement technically stops short of actual discrimination does not really help the second that something that *looks* like racial discrimination pops up.

        I’m now tempted to apply at Hobby Lobby and state outright that I won’t in any way help them issue or distribute any forms of insurance that do not contain contraceptive coverage, and then sue them when I don’t get a job.Report

      • Avatar Michael Cain in reply to Burt Likko
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        says:

        @davidtc
        IANAL, but I suspect that the court will find that because you are not an owner, nor an officer, nor in a position that requires state licensing, “writing a check” is not something that you get to decide to do or not. Can one of the legal types here refresh my memory on the current state of pharmacists refusing to fill prescriptions for birth control pills?Report

      • Avatar Will Truman in reply to Burt Likko
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        says:

        @michael-cain It varies from state to state, but pharmacists in most states do not have to fill birth control prescriptions. Some states to require it. A couple tried to require it but their laws were struck down by the courts.Report

      • Avatar DavidTC in reply to Burt Likko
        Ignored
        says:

        @michael-cain
        IANAL, but I suspect that the court will find that because you are not an owner, nor an officer, nor in a position that requires state licensing, “writing a check” is not something that you get to decide to do or not. Can one of the legal types here refresh my memory on the current state of pharmacists refusing to fill prescriptions for birth control pills?

        What if instead of ‘writing a check’ it was ‘attending a religious ceremony and reciting a Bible verse’? What if the corporation actually asked you to do that? What if they asked you, as an employee, to do an exercise of religion’?

        Corporations ask that, legally. (Technically.) But they cannot, in any way, penalize people who refuse, or reward people who do. That’s religious discrimination. (And it’s a really stupid for them to ask employees in the first place.)

        Now, remember that Hobby Lobby swore under oath that refusing to provide contraceptives was an exercise of religion.

        So, employees do have the right to refuse to participate in an exercise of religion, and Hobby Lobby has already claimed, under oath, that writing that check is an exercise of religion. The math basically does itself.

        Will someone please either acknowledge this is a huge problem for Hobby Lobby, or state a reason it isn’t?Report

      • Avatar Will Truman in reply to Burt Likko
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        says:

        I don’t believe it will be a problem for Hobby Lobby because I don’t believe the courts will see it the way you do. I believe the courts will see it along the way that I earlier said, that because it’s a religious expression to the employer does not mean it is a religious expression to the officer*. You reject that argument, which is fine, but the ultimate say will lie with the courts. So it’s speculative, but will be revealed in time.

        * – I didn’t respond to your response, because it was mostly the above belief that the courts will make the distinctions. I don’t think that the courts will view a CFO signing a document saying that the Corporation Believes X actually requires the CFO to believe same. That’s a matter where one of us can be proven wrong.Report

      • Avatar morat20 in reply to Burt Likko
        Ignored
        says:

        Will,

        What if it’s a closely held corporation with 5 owners, each with 20% stake — and when “providing contraception in insurance” came up for a vote, the CFO was outvoted 3-2.

        According the courts, Hobby Lobby has religious beliefs that can be infringed because it’s so closely held — so your CFO is stuck signing a statement against his religious beliefs on behalf of the company he “closely holds” per SCOTUS — so closely that he’s almost interchangeable with it (except for liability purposes, that wouldn’t do), because he was out-voted.

        The courts are then requiring a distinct, separate individual acting as a corporate officer to sign an affirmation of religious belief that states he — as a closely held owner of Hobby lobby — disagrees with religiously! He is simultaneously virtually the same person as Hobby Lobby and a mere form-signing cog, purely on the whim of the court.Report

      • Avatar DavidTC in reply to Burt Likko
        Ignored
        says:

        @will-truman
        I don’t believe it will be a problem for Hobby Lobby because I don’t believe the courts will see it the way you do. I believe the courts will see it along the way that I earlier said, that because it’s a religious expression to the employer does not mean it is a religious expression to the officer*. You reject that argument, which is fine, but the ultimate say will lie with the courts. So it’s speculative, but will be revealed in time.

        My entire point is that the courts *can’t consider the other side*.

        Why? Because Hobby Lobby already said it was an exercise of religion. That’s the entire premise of this. And any other company that does this will have signed a waiver saying they believe that too.

        If Hobby Lobby fires, or refuses to hire, an employee because said employee refused to do something that Hobby Lobby itself claims is an exercise of religion, Hobby Lobby is completely screwed in court. They can’t turn around and claim it’s not an exercise of religion. They can’t claim it’s just some normal neutral corporate behavior.

        On the scale of 1 to 10, with 1 ‘Forcing employees to fill all prescriptions and firing those who don’t’ at one end, and ‘Forcing employees to attend church and be baptized and firing those who don’t’ at 10, it’s literally an 11. It’s something they already conceded in court. They lose. Game over. They have no defense, at all.

        Also, I wasn’t really talking about signing the statement. Presumably, any officer can do that, and people don’t generally have religious objections to to signing a statement as to other people’s religious beliefs. (And even if they do, who cares? Hobby Lobby hasn’t agreed to *that* under oath, so can dispute it’s an exercise of religion.)

        I was talking more about actually purchasing the insurance, paying for it, distributing the checks, etc. The ‘exercise of religion’ that Hobby Lobby says it is doing.Report

      • Avatar Will Truman in reply to Burt Likko
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        says:

        I’ve been thinking today about cases where the ownership of the corporation isn’t of a single mind. I’m not sure how that works, but I would guess it works the same way that it would with political donations.

        Someone who partially owns the company is in a slightly different situation than an officer. For privately held companies, though, I think there is discretion on who to sell partial ownership to, though, so they can legally prevent a dissenting party from getting ownership share in the company.Report

      • Avatar Will Truman in reply to Burt Likko
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        says:

        David, if you’re right, then you will be proven right. I simply don’t believe you are and I don’t believe paying insurance that lacks contraception is anywhere close to 11. I’m not going to be able to convince you that you’re wrong, but that’s okay. We have courts to rule on these things. If you’re right, you will be shown to be right. Come back here and gloat. I will congratulate you and feel kind of dumb.Report

      • Avatar Burt Likko in reply to Burt Likko
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        says:

        @will-truman that’s what a closely-held corporation is: the identity of people who are stockholders is limited and there is no substantial likelihood of alienation of the stock. A typical but not necessarily characteristic of a closely-held corporation is that the corporation itself has restrictions on alienability of the stock — e.g., calls upon the death of the owner, payable by life insurance held by the company; rights of first refusal upon proffers of purchase — or restrictions on how the stock is used, like a voting trust. (Hobby Lobby stock is held in a voting trust.)Report

  2. Avatar dand
    Ignored
    says:

    If Hobby Lobby was about a law requiring employers to serve pork in the employee cafeteria and Muslim owned business objected everyone’s opinion would be the opposite of what it is.Report

  3. Avatar ScarletNumbers
    Ignored
    says:

    So, it’s a big day for Samuel Alito groupies.

    Jersey strongReport

  4. Avatar Burt Likko
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    says:

    Limiting language re: application of the reasoning to other medical procedures or race discrimination, from the slip opinion at page 46:

    [O]ur decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
    The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

    The first paragraph leaves me wondering — if the “compelling interest” is found to be “more compelling,” is there some sort of a sliding scale as to how minimally intrusive the government’s legislation must be? In other words, if it’s super-important, can the government be more intrusive? In the past, we’ve treated these findings as either above or below the threshold: either an interest is compelling or it is not; either the government has used the least intrusive means available or it has not.

    The second paragraph, by which Justice Alito tries to save the emerging “religious objection exception” to generally-applicable laws from being used to attack sacred cows of American government, is quite clearly dicta. Without any briefing or even argument about the issues before him, he pronounces the Civil Rights Act to be narrowly-tailored to achieve a compelling governmental interest and therefore indicates that it would pass the new variation of what used to be called the Sherbert test. Maybe he’s right. I hope so, because this opinion doesn’t carry a lot of weight towards achieving that result.Report

    • Avatar Jim Heffman in reply to Burt Likko
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      says:

      I would probably be more concerned about “religious exceptions to discrimination laws” if there were a well-established mainstream religion that had racial discrimination as a long-held and well-publicized practice.

      It’s not like people didn’t know before the PPACA passed that orthodox Christians considered birth control to be a sin.Report

      • Avatar Michael M. in reply to Jim Heffman
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        says:

        Some denominations have a long-held and well-publicized practice denouncing homosexuals. If Congress ever passes ENDA (a big if, granted), I can imagine an almost immediate challenge from closely-held for-profit corporations like Hobby Lobby claiming that not being able to discriminate against teh gay violates their sincerely held religious beliefs.

        I can equally well imagine a 5-4 decision penned by Alito or Scalia echoing Byron White’s words in Bowers v Hardwick that there is no constitutional right to homosexual sodomy. And another 17-year wait until it is overturned.Report

      • Avatar DavidTC in reply to Jim Heffman
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        says:

        I would probably be more concerned about “religious exceptions to discrimination laws” if there were a well-established mainstream religion that had racial discrimination as a long-held and well-publicized practice.

        Huh? I think you’re looking at that backwards. If you’re thinking racists won’t have a completely legitimate religious belief to point to to justify racial discrimination, you’re wrong.

        Almost all ‘organized racists’ in this country have a ‘mainstream’ religion, or at least an offshoot of a mainstream religion, that has racial discrimination as a long-held and well-publicized practice. White Separatists, do, in fact, go to church…and there are plenty of White Separatist churches. (They’re not very *big*, but they do exist. Remember, ?Westboro Baptist Church exists too.)

        Don’t think the issue is ‘They could make up a religion to give them cover, and the courts won’t be able to say it’s not a real religion’. That’s not the issue. They, literally, are already a member of a religion with those beliefs. They don’t need to invent anything.Report

      • Avatar greginak in reply to Jim Heffman
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        says:

        @jim-heffman Things have changed quite a bit in the last few decades thankfully, but lots/most Christians maintained slavery, Jim Crow and all sorts of discrimination and oppression, genocide against Native Americans/indigenous people around the world, etc as very Christian indeed.Report

      • Avatar James Hanley in reply to Jim Heffman
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        says:

        I can equally well imagine a 5-4 decision penned by Alito or Scalia echoing Byron White’s words in Bowers v Hardwick that there is no constitutional right to homosexual sodomy.

        Given the Windsor case last year, I’m wondering what you think the lineup of that 5-4 split would be.Report

  5. Avatar dand
    Ignored
    says:

    I would probably be more concerned about “religious exceptions to discrimination laws” if there were a well-established mainstream religion that had racial discrimination as a long-held and well-publicized practice.

    You mean like the Mormons?Report

  6. Avatar Mike Schilling
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    says:

    What, no dissents by Thomas saying that there is no right for any employees to unionize and any sort of corporation can deny any sort of health care? He’s mellowing.Report

  7. Avatar LeeEsq
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    says:

    The Hobby Lobby case was interesting not so much for its result but for how the conservative faction of the Supreme Court did not carry its holding to its full implication. The holding only applies to contraceptives but not other form of health care that religious people might no take exception to including vaccines, blood transfusions, or modern medicine in general for Christian Scientists. So a corporation owned by a Jehovah’s Witness might not have to pay for contraceptives but will still have to pay for blood transfusions.Report

    • Avatar Kazzy in reply to LeeEsq
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      says:

      Well, Jehovah’s Witnesses don’t have a religion worth protecting. Duh. Only REAL Americans… err… Christians deserve that.Report

      • Avatar Mo in reply to Kazzy
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        says:

        I think part of it is that there is an explicit birth control exemption in the law for non-profits that for-profits can now take advantage of, but not one for blood transfusions. This was basically a sop to get RCC groups to help back the law. I’m sure if there was a blood transfusion exemption form for non-profits, the JW owned private firms would also be allowed to use it. So if anyone is to blame here, it’s the authors of the law creating a carve out for BC in the text of the law.Report

      • Avatar Kazzy in reply to Kazzy
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        says:

        So accommodating the RCC means more women get screwed? Awesome.Report

      • Avatar Mo in reply to Kazzy
        Ignored
        says:

        @kazzy They can still get it for free from the government. Also, even if they couldn’t, it’s highly likely more women gained BC coverage from the law passing than lost it.Report

      • Avatar Michael Cain in reply to Kazzy
        Ignored
        says:

        @mo
        But is there an existing program by which women employed by Hobby Lobby can get it from the government? Since any new program like that is DOA in Congress these days.Report

      • Avatar James Hanley in reply to Kazzy
        Ignored
        says:

        @michael-cain

        As Obama has already demonstrated that he thinks ACA is wholly open to his whims of implementation, he can simply create such a program through executive order.Report

    • Avatar Marchmaine in reply to LeeEsq
      Ignored
      says:

      I take your point, but quoting from above, it seems that the state would have to make a case that there is both compelling interest *and* that that [insurance] would be the least restrictive means.

      “Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.”

      He certainly seems to prejudice the decision, but I think a Jehovah’s witness could attempt to make such a claim, and focus on the alternative means of providing (if there are any)… and/or the state will have to show that alternative means were considered and that this was the least restrictive way. I don’t necessarily think that such is an unjust compromise where the state wishes to compel action.

      It might be that providing health care thought work is a really shitty way to provide health care – I’m ok with arguing that, and I think some of what we are seeing here is trying to force a square peg into a round hole.Report

    • Avatar James Pearce in reply to LeeEsq
      Ignored
      says:

      “how the conservative faction of the Supreme Court did not carry its holding to its full implication.”

      Yes, but that was to be expected. They had to throw a bone to the right wing, but they weren’t prepared to completely rewrite the Constitution or subvert established corporate law.Report

    • Avatar Matty in reply to LeeEsq
      Ignored
      says:

      Is there anything to the rather sarcastic comment I read that the Catholic justices deliberately wrote to only protect Catholic beliefs and that’s why contraception are treated differently to blood transfusion?Report

      • Avatar morat20 in reply to Matty
        Ignored
        says:

        Abortion is the only religious belief that matters, apparently.

        It’s super special.Report

      • Avatar Saul Degraw in reply to Matty
        Ignored
        says:

        Sotomayor is Catholic and voted with the dissentReport

      • Avatar Patrick in reply to Matty
        Ignored
        says:

        I’m sure some member of the American Council of Bishops is ready to write an op-ed about how she excommunicated herself and should be denied Communion.Report

      • Avatar morat20 in reply to Matty
        Ignored
        says:

        Saul,
        I didn’t say a word about Catholics.

        I just pointed out that, well — even in the ruling it mentioned Hobby lobby believing some of these are abortion-causing drugs and even if they’re wrong as a matter of fact, it doesn’t matter.

        Contrasting with Scalia’s previous decisions (such as on peyote use), it’s hard NOT to draw the conclusion that the only religious belief of substance in America is abortion, at least when it comes to undue government burdens.Report

  8. Avatar Mad Rocket Scientist
    Ignored
    says:

    I’m surprised Harris v. Quinn was such a close decision. I figured that for a stronger finding. I’ll have to read the dissent.Report

    • @mad-rocket-scientist

      Were you thinking close in favor of “fair share” or against?

      I skimmed the main opinion but read only the intro to the dissent, so take this for what it’s worth. I think the reason it was so close (against “fair share”) was that the dissenters, some of whom otherwise might have bought the majority’s claim that these weren’t bona fide “state employees,” wanted to underscore that Abood remain good law, and perhaps signal to future challenges that as far as four members are concerned, “fair share” is alive and well for public employees, as long as they really are public employees.Report

      • Avatar Mad Rocket Scientist in reply to Gabriel Conroy
        Ignored
        says:

        I figured it would be more like a 6-3 or 7-2 against the state of IL, since (IIRC) the litigants in question were not state employees, but private individuals who happened to collect money from the state as part of a public benefit to offset the costs of home health care (i.e. not really state employees in any formal way). Also, the dues gathering the state/union wanted to impose would have only provided at best a very limited benefit, possibly in the form of better wages, but without other benefits that regular union members have (pensions, dispute resolution, legal assistance, etc.). So the party(s) in question would have to pay full union dues for a limited set of benefits.Report

      • Avatar Gabriel Conroy in reply to Gabriel Conroy
        Ignored
        says:

        @mad-rocket-scientist

        If I understood correctly the parts of the decision I read, you pretty much nailed the reasoning for why the majority decided the way it did. Again, I didn’t really read the dissent, except the intro, so I don’t have a clear sense either of why it was so close.Report

      • Avatar Mad Rocket Scientist in reply to Gabriel Conroy
        Ignored
        says:

        @gabriel-conroy

        My take on the dissent was that they were (overly, IMHO) concerned that a finding for the plaintiffs would damage a previous decision. Seemed a stretch to me, which makes me think they were trying to rule for the union & that was the best argument they could find.Report

  9. Avatar Mike Schilling
    Ignored
    says:

    Hint: both majority opinions are from Samuel Alito.

    Geez, Ralph Nader has a lot to answer for.Report

  10. Avatar Tim Kowal
    Ignored
    says:

    The corporation question always seemed like a blatant Hobson’s Choice. Either expose yourself and your family to devastating liability, or forfeit your conscience. Your money or your soul.Report

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

      The true injustice in American history is that wealthy people can’t have everything their own way all the time. Perhaps it’s time to consider paying them reparations,Report

      • Avatar Mark Thompson in reply to Mike Schilling
        Ignored
        says:

        Like I hinted at in my opinion when we did the mock SCOTUS, replace “large -but closely held – business Hobby Lobby” with “small Kosher deli,” and replace “federal government’s contraception mandate” with “anti-Semitic town council.” If that town council then proceeded to get rid of Jewish businesses by, say, requiring that all retail businesses and restaurants be open on Saturdays, the practical impact of that would be not only that the ordinance was upheld, but that there would literally be no one with standing to challenge the ordinance unless the business owner took the risk of unincorporating.

        To deny standing would be to say that laws that intentionally discriminate against religion – not just inadvertently – might never be subject to challenge as long as they were nominally aimed only at businesses. That’s a very troubling result to me, and is indeed what changed my mind about this case. I just don’t see how, for purposes of standing, you can make a distinction between Hobby Lobby and my hypothetical Kosher deli.

        This, by the way, was also quite clearly the position of Justice Brennan, who is not exactly someone you’d call a conservative or a protector of the wealthy, and Alito’s opinion is strongest when it cites Brennan repeatedly.Report

      • Avatar Jim Heffman in reply to Mike Schilling
        Ignored
        says:

        Tell us more about how every business owner in America is richer than Roosevelt.Report

      • Avatar Kazzy in reply to Mike Schilling
        Ignored
        says:

        @mark-thompson

        Doesn’t the fact that one is a corporation and one is a sole proprietorship matter? Incorporating is a way of distancing individuals from the business. If you want that distance — if you want your personal assets separate from the business — it seems fair to say that your personal beliefs are also separate.

        Going in a slightly different direction, the county I grew up in (Bergen, NJ) still has Sunday blue laws. Pretty much everything is closed. We also have a large Orthodox Jewish population and many Orthodox owned stores. They are closed on Saturdays due to Sabbath and closed on Sundays due to the blue laws. This puts them at a competitive disadvantage, especially those that don’t cater specifically to Jewish clientele. I don’t know if there have been any attempts at challenging the laws. Do you think the blue laws should be overturned on similar grounds?Report

      • Avatar Tod Kelly in reply to Mike Schilling
        Ignored
        says:

        @kazzy “Doesn’t the fact that one is a corporation and one is a sole proprietorship matter?”

        The obvious rejoinder here, if I am reading your argument correctly, is that in Mark’s fictional (but not really that fictional) town, having a system where good, law-abiding Christians were able to use corporations — with both their investment capabilities and personal wealth shields — but that those dirty Jews who killed out Savior would bet relegated to PPs seems the obvious result.Report

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

        Kosher delis have no problem being open on Saturdays, , because JudIsm doesn’t impose its religious obligations on non-Jews. (There’s actually a tradition of hiring them to do work on the Sabbeth. Look up Shabbes goy.). The issue there is the practical one that it would have no customers on Saturday but many on Sunday , and that applies regardless of the owner’s religion.

        So, sorry , non sequitur.Report

      • Avatar Mark Thompson in reply to Mike Schilling
        Ignored
        says:

        @tod-kelly Exactly. I’d just add that I think @kazzy is overestimating the number of businesses that are sole proprietorships. In reality these days, I don’t think many small business owners are willing to take the risks associated with being a sole proprietorship, particularly with how easy it is to incorporate.

        Regarding the Blue Laws issue, that was an issue that was directly addressed in several opinions in the ’60s, and those opinions formed something of the linchpin of Alito’s opinion on standing today (they also, FWIW, were the linchpin of my opinion on this issue when we did the mock SCOTUS). In those cases, there was no disagreement that the plaintiffs had standing – in each case, the Court reached the merits, although in neither case did the majority directly address the standing issue, though both the dissent and concurrence did. It’s hard to see why the majority in those cases would have ignored the standing issue entirely in order to reach the merits if it did not agree that standing existed.

        On the merits, though, the majority basically said that the burden on religious practices was not substantial, but was instead only indirect. Justice Brennan dissented and essentially laid out the framework for what would become the Sherbert test that the Court went on to adopt a few years later, and which was overruled in the Employment Division v. Smith case in 1990 before being explicitly resurrected under RFRA the following year.

        The Blue Laws probably survive because the cases in the 60s were never explicitly overruled, but if the Sherbert test is applied the way that Brennan originally intended, religious exceptions to Blue Laws probably should be required.

        What’s important, though, for purposes of the Hobby Lobby case is that even when the Court upheld the Blue Laws pre-Sherbert, it didn’t seem to have a problem with the notion that the corporate entities at least had standing to challenge those laws.Report

      • Avatar Kazzy in reply to Mike Schilling
        Ignored
        says:

        @mark-thompson

        It’d be silly of me to offer much challenge to your legal expertise. But pardon me if I’m skeptical of the ability of a court that is comprised primarily (exclusively?) of Christians to properly determine what is and is not a substantial burden on different religious faiths.

        I think that is what bothers me. When the Rastafarians want exemptions to marijuana laws or followers of the Church of Kazzy want exemptions to rules about wearing footwear while preparing/handling food, they’re not going to get the same treatment that the Hobby Lobby Christians do. It’s not about freedom of religion. It is about further entrenching the powers of some at the expense of others.Report

      • Avatar Tod Kelly in reply to Mike Schilling
        Ignored
        says:

        @kazzy “I’m skeptical of the ability of a court that is comprised primarily (exclusively?) of Christians to properly determine what is and is not a substantial burden on different religious faiths.”

        You’re not referring to SCOTUS, are you? I thought (and I could be wrong?) that we had 3 or 4 non-christians, and zero protestants.Report

      • Avatar Burt Likko in reply to Mike Schilling
        Ignored
        says:

        Religious composition of Court:

        Roberts: RCC
        Scalia: RCC
        Kennedy: RCC
        Thomas: RCC
        Ginsburg: Jewish
        Breyer: Jewish
        Alito: RCC
        Sotomayor: RCC
        Kagan: JewishReport

      • Avatar Kazzy in reply to Mike Schilling
        Ignored
        says:

        I was thinking historically because of the power of precedent.Report

      • Avatar Michael Cain in reply to Mike Schilling
        Ignored
        says:

        @mark-thompson
        And LLC (limited liability company) laws have become much more common. In theory, the finances work like a sole proprietorship or partnership — in fact, that’s how the federal IRA treats them — but the members get the liability protections of incorporation. Here in Colorado, it seems like every truck I see for the little one- or few-person contractors, plumbers, electricians, etc have LLC tacked on the end of their name. As to liability protection, my family lawyer tells us that we’ll have to wait for the case law to emerge and see if the courts agree that the legislators actually wrote what they thought they were writing.Report

      • Avatar Michael Cain in reply to Mike Schilling
        Ignored
        says:

        Oops. Federal IRS. Stupid fingers.Report

      • Avatar Tod Kelly in reply to Mike Schilling
        Ignored
        says:

        “When the Rastafarians want exemptions to marijuana laws or followers of the Church of Kazzy want exemptions to rules about wearing footwear while preparing/handling food, they’re not going to get the same treatment that the Hobby Lobby Christians do. ”

        I disagree with this up to a point. Part of my disagreement comes from the fact that the RFRA actually does specifically guarantee religious rights of extreme religious minorities. (Native Americans use of peyote in religious ceremonies comes to mind.) And part of my disagreement comes from the fact that I don’t see the owners of HL as being part of the empowered elite. I think anti-both control advocates in the US are are a much mocked and dismissed minority.

        But mostly I disagree because, ironically, I agree. If we acknowledge that certain minority faiths in this country (especially, if we’re being honest, one’s populated by non-white practitioners) can fall prey to majority prejudices, why would we want SCOTUS to rule in a way that allowed cities, counties, and neighborhood associations to do so?

        (And FTR, this isn’t an argument that corporations of any size should be able to deny birth control as part of a healthcare package for their employees. They shouldn’t.)Report

      • Avatar Burt Likko in reply to Mike Schilling
        Ignored
        says:

        An LLC holds a separate legal identity from its owner(s) and manager(s) the same way a corporation holds a separate legal identity from its stockholder(s), officer(s), and director(s). It may be a more convenient form of entity for small businesses to employ, requiring less formality and record-keeping, and generally is fairly easy to get favorable tax treatment. But that doesn’t mean it’s any more the same thing as its owner than a corporation. Try it: sue an LLC’s owner for something the LLC did, and watch what the lawyer says.Report

      • Avatar Mark Thompson in reply to Mike Schilling
        Ignored
        says:

        @kazzy Sure, but that’s a different issue. The standing issue isn’t whether the Supreme Court specifically is going to be fair at deciding this, it’s whether people whose religious beliefs are being directly attacked should be prohibited from having their day in court at all to challenge a blatant attempt to discriminate against their religion. Remember, the number of cases that actually reach the Supreme Court are few and far between, and most cases are decided at the trial court or appellate court levels – including, I should mention, state trial courts and appellate courts in some instances. On those levels, it is not necessarily the case that the judge will be a white Christian; even more importantly, if the judge is not a white Christian at that level, there may not even be anyone who is a white Christian to overrule her. Regardless, I think your assumption about SCOTUS being unwilling to find burdens on minority religions is also quite incorrect – see, e.g., http://en.wikipedia.org/wiki/Gonzales_v._O_Centro_Esp%C3%ADrita_Beneficente_Uni%C3%A3o_do_Vegetal

        @mike-schilling It’s not a non-sequitor – even if what you say is true, what you refer to is at most evidence about whether this would be a substantial burden. But we don’t even reach that issue if there’s no standing. I think you’re also very much overstating your case – the Blue Laws cases to which I referred were cases where the businesses’ argument was precisely that they were religiously obligated to be closed on Saturdays and that the effect of those laws was to force them to close for an extra day.

        But if that’s your hangup, then let’s go instead with a situation where the municipal government looks to prohibit any businesses from butchering meat in accordance with Jewish or Muslim dietary laws. Again, no one would even have standing to challenge such a law, even if the sole rationale for the law was a desire to get rid of Jewish and Muslim businesses.Report

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

        @mark-thompson

        None of your hypotheticals deals with the owners’ religious convictions vs. their legal obligations to their employees, as this case does. How about a factory owner who believes that the existence of a just, wise, and all-powerful God implies that there are no accidents, therefore being required to provide eye protection infringes his religion?Report

      • Avatar Michael Cain in reply to Mike Schilling
        Ignored
        says:

        @burt-likko
        Exactly (I probably expressed myself badly). Why would anyone operate as a sole proprietorship if they can operate as a liability-protected LLC for a nominal fee?Report

      • Avatar Mark Thompson in reply to Mike Schilling
        Ignored
        says:

        You’re confusing the two issues again, though. Frankly, before my mind changed on this issue, I believe I used the exact same hypothetical. But the response is that, while your hypothetical owner has standing to sue, that’s a far cry from saying that his suit will be meritorious. In your hypothetical, for instance, the existence of a compelling government interest is pretty obvious, and it’s almost impossible for me to imagine a way in which a judge would say that a less restrictive means for achieving workplace safety is available.

        Whether it’s an obligation that pertains to employer-employee relations or to something else entirely has nothing whatsoever to do with whether an employer should have standing to file suit for violation of free exercise rights. It may – and probably should – be a factor to consider in determining whether there’s a compelling government interest and whether that interest is being advanced by the least restrictive possible means.

        But I don’t buy the notion that blatantly and intentionally unconstitutional laws should be effectively rendered immune to challenge just by virtue of being aimed at corporate entities. As Tod pointed out, the effect of that would be to say that Congress or a local/state government may choose to make it so that the corporate form is de facto available only to members of politically favored religious groups.

        Now, my preference would have been for the Court to say that the business’ owners alone have standing to claim injury through the corporation and that the corporate entity does not “exercise” religion itself, but as a practical matter, I don’t know that my preferred distinction makes any difference. I just think that it would have been a more persuasive distinction and argument.Report

      • Avatar Dave in reply to Mike Schilling
        Ignored
        says:

        @mark-thompson

        In your hypothetical, for instance, the existence of a compelling government interest is pretty obvious, and it’s almost impossible for me to imagine a way in which a judge would say that a less restrictive means for achieving workplace safety is available.

        In the example Mike brought up, I’m also amenable to judges throwing out RFRA claims on the basis that the religious objections aren’t valid. By valid, I don’t mean weighing in on a debate but rather knowing bulls–t when they see it.Report

    • Avatar Francis in reply to Tim Kowal
      Ignored
      says:

      Or don’t offer health care; pay a higher salary instead.Report

      • Avatar Jim Heffman in reply to Francis
        Ignored
        says:

        “Hobby Lobby joins Wal-Mart and other corporate teat-suckers by throwing all its employees off the corporate health plan onto the public rolls…”Report

      • Avatar Michael Cain in reply to Francis
        Ignored
        says:

        Isn’t there a tax penalty somewhere down the line for doing that?Report

      • Avatar Burt Likko in reply to Francis
        Ignored
        says:

        It’s not somewhere down the line, @michael-cain , it’s a reality for larger corporations* as of January 1 of this year.

        * Why do people keep on calling Hobby Lobby a “small corporation”? It’s not. It has a small number of shareholders, and everything else about it is big. It employs over 20,000 people in more than 500 stores spread out over 20 states and has annual revenues in the billions of dollars.Report

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

      Well is the corporation distinct from its owners or is it not? If the profits of my closely held Corporation are “my money,” then why aren’t the debts of the same closely held corporation “my debts?” Either the corporation is distinct from its owners, in which case the claim that the corporation can have religious beliefs is nonsense, or it isn’t, in which case limited liability makes no sense.Report

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

        It’s called the “corporate fiction” because it is a creation of law to shield certain kinds of liability imposed by law. It can’t shield from liability imposed by the hereafter, and so in matters of conscience the fiction cannot hold.Report

      • Avatar Francis in reply to Don Zeko
        Ignored
        says:

        Tim writes: in matters of conscience the fiction cannot hold

        You can’t be serious. Who is to measure whether the decision to violate a federal mandate is a matter of conscience or convenience?

        If the exception is so broad, I expect an explosion in faiths tailored to create RFRA exemptions to annoying state and federal mandates.Report

      • Avatar Don Zeko in reply to Don Zeko
        Ignored
        says:

        @tim-kowal To me this sounds like you’re saying that plaintiffs want it both ways and deserve to have it both ways, but to be honest what really bugs me about the decision isn’t that a corporation can assert a sincerely held religious belief; it’s the way the majority analyzed the substantial burden/compelling interest side of things. To my mind, the money hypothetically being spent on birth control isn’t Hobby Lobby’s money at all; it’s the employee’s money, which they earned in the form of an employee health plan that is part of compensation for their labor. So what Hobby Lobby is saying is that it violates their conscience to have an employee use their compensation to go to the doctor, get a prescription from the doctor, get it filled by a pharmacist, and then use it. It’s a very complex process with a lot of moving parts that gets the birth control into the ends of the woman who will eventually use it, which Hobby Lobby is only peripherally involved in.

        So what they’re putting forward is, first of all, a notion that wages & benefits aren’t something that the employee earns through her labor, they’re something that is given to her by her benevolent employer. This bothers me. Beyond that, the plaintiffs want the court to enforce a standard of conscience that is incompatible with participating in a market economy in which people think and live differently. They want to be able to tell that employee, that doctor, and that pharmacist what to do, and they call that protecting their religious freedom.

        If your religion doesn’t tolerate you brushing up against the economic activity of others that you disapprove of, then the solution is not to demand that the government prevent everyone from around you from doing whatever you find sinful.Report

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

        @don-zeko The problem you identify is with the IRC, not employers. Employees only get tax exemptions on health care if the employers pay for it. If there were no distinction between employers and employees paying for health coverage, there’d be no limit to the exemption. So long as the government leaves the decision for the health plans with the employers, it must make room for their religious beliefs.Report

    • Avatar Kazzy in reply to Tim Kowal
      Ignored
      says:

      Hey… I have retained my conscience without exposing myself and my family to devastating liability! I must be doing it right, eh @tim-kowal ?Report

      • Avatar James Hanley in reply to Kazzy
        Ignored
        says:

        @kazzy

        You do understand that without LLC, if you start a business all your private assets are exposed if you are sued. Zazzy might not appreciate that. So you get LLC status so that if you fish up Zazzy and Mayonnaise don’t end up living on the streets.

        And, to quote you, bam!, you lose all rights to not have the government make you operate your business in a way that conflicts with your most deeply held religious beliefs.

        I’m not following why some people don’t have any problem with that. I think a person could disagree with the Court’s ruling today without airily dismissing the fix that puts religious folks in. Maybe I’m wrong, but my tendency is to see it as animosity toward religion, or at least as as carelessly ignorant of religious folks’ concerns.Report

      • Avatar Kazzy in reply to Kazzy
        Ignored
        says:

        @james-hanley

        I don’t object to LLCs. But in order to limit one’s liability, it would seem that should be counter-balanced by similarly limiting something else, no? By forming an LLC, you are essentially saying, “I divorce myself personally from this business entity. This is strictly a business with no relationship to my personal life.” To then turn around and say, “But it has feelings and beliefs!” seems to be trying to have your cake and eat it, too.Report

      • Avatar James Hanley in reply to Kazzy
        Ignored
        says:

        Kazzy,

        Sure, we can ask some things in response for the privileges of LLC.

        But how much?

        Keep in mind that limited liability is not solely for the benefit of the business investors. It has a public purpose, too, in that it encourages business investment, and so promotes economic development. And that, of course, leads to greater tax revenues.

        So, given that the government/public benefit from granting limited liability, one could argue that a good deal has already been struck, and any further demands it makes on the business investor risk being the real case of having one’s cake and eating it, too.

        It also seems to me that it can easily get really assholish real quick, if there are no limits to what the government that benefits from granting limited liability can demand in exchange for granting it.Report

      • Avatar Tim Kowal in reply to Kazzy
        Ignored
        says:

        @kazzy “To then turn around and say, “But it has feelings and beliefs!” seems to be trying to have your cake and eat it, too.” This is the cake the other side sees the left having and eating. The left decries corporations for reducing everything to the “profit motive,” but now insists they cannot possibly have any other motive.Report

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

      That’s the whole point of incorporation! You give up certain rights in order to separate personal assets from corporate assets,Report

    • Avatar LWA in reply to Tim Kowal
      Ignored
      says:

      @tim-kowal
      Given that the corporate form of business doesn’t even have a natural right to exist, that line of reasoning seems thin.
      Or is there some natural right to be shielded from the consequences of our actions?Report

      • Avatar Tim Kowal in reply to LWA
        Ignored
        says:

        Corporations were recognized under common law. Blackstone traced their origins to ancient Romans and referred to them as “artificial persons” existing “to preserve entire and for ever those rights and immunities” which would “be utterly lost” when the corporators died.

        From this, limited liability flows from natural law reasoning. Shareholders cannot in reason be charged with liability for wrongdoing over which they have no control. Nor can they be held liability in greater proportion than their other shareholders — shareholders with “deep pockets” would be the target of litigation while those with few assets would be effectively immune.

        The modern corporation is said to be a creature of statute. But it does not follow that they do not have their origins in the natural law.

        [See PLF’s amicus brief for more.]Report

      • Avatar Gabriel Conroy in reply to LWA
        Ignored
        says:

        Did Blackstone say limited liability was an inherent part of the corporation, or did that come later? My impression is that corporations came first, much earlier, before limited liability.

        I suppose limited liability does logically follow from the corporate personhood (whether that following is natural-law-like is beyond my grasp to debate or deny), and of course today, it seems to be almost synonymous with the corporate form. And I personally think limited liability for shareholders is a good and desirable thing. But there’s a history here that suggests it’s not so simple.Report

      • Avatar Tim Kowal in reply to LWA
        Ignored
        says:

        @gabriel-conroy I think limited liability may have come later. The origins can probably be found by following the citations in the PLF amicus brief, which I don’t have time to do at the moment.Report

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

      The corporation question always seemed like a blatant Hobson’s Choice. Either expose yourself and your family to devastating liability, or forfeit your conscience. Your money or your soul.

      For the Christian (depending on denomination, etc.), the cohice might be a little different:

      For the children of this world are wiser in their generation than the children of light. Wherefore make unto yourselves friends out of the mammon of iniquity so that when you die they may receive you into everlasting dwellings.
      Report

    • Avatar Murali in reply to Tim Kowal
      Ignored
      says:

      Risks a person takes with his own money should be born by himself and his family, not anyone else. Why should the rest of us forgive your debts just because you make a bad investment? Not that we’d let you starve, but ideally, people should pay off their debts.Report

  11. Avatar Michelle
    Ignored
    says:

    I haven’t had a chance to read the Hobby Lobby decision yet–and won’t be able to get to it til later this evening or tomorrow–but I can’t same I’m surprised given the make-up of the Court. Yet another significant legal issue where the Court divides 5-4 along ideological lines. Quelle suprise!Report

  12. Avatar Saul Degraw
    Ignored
    says:

    I disagree but am unsurprised by the conclusion of both rulings. I am slightly surprised by Breyer’s dissent in Hobby Lobby because he seemed amicable to a closed corporation decision during oral argument. It is important to note that the court explicitly held that closed corporations could not use religious liberty as a shield for other forms of illegal discrimination like things that would violate the Civil Rights Act of 1964. They are clearly trying to prevent unintended consequences like having a Christian company deny employment to Jews, Muslims, Shiks, etc.Report

  13. Avatar Kazzy
    Ignored
    says:

    “Closely-held corporations cannot be required to provide contraception coverage under Obamacare; they must be offered the same sorts of accommodations to religious beliefs as are available to nonprofit religious entities.”

    Ugh.

    As for saying that the government could pay for contraception, I’m totally on board with that. But we all know how well that will go over.Report

    • Avatar Don Zeko in reply to Kazzy
      Ignored
      says:

      As with the first big ACA case, conservative jurists are happy to concede that the more liberal, politically impossible way for Liberals to do what they want is constitutional, so long as they don’t actually go and get it through congress.Report

  14. Avatar trizzlor
    Ignored
    says:

    That’s lunacy in my opinion. Can it fall in love, too?

    I’m curious what you think of the SCOTUS response to this:

    HHS and the dissent nonetheless argue that RFRA does
    not cover Conestoga, Hobby Lobby, and Mardel because they cannot
    “exercise . . . religion.” They offer no persuasive explanation for this
    conclusion. The corporate form alone cannot explain it because
    RFRA indisputably protects nonprofit corporations.

    Do you think that SCOTUS is incorrectly interpreting the RFRA, or that SCOTUS should have nullified the RFRA?Report

    • Avatar Burt Likko in reply to trizzlor
      Ignored
      says:

      RFRA does indisputably exempt itself from (some) nonprofit corporations.

      That does not mean that the corporation itself practices a religion or holds a religious belief. It means that RFRA does not apply to (some) nonprofit corporations.

      As I see it, a nonprofit corporation, let’s hypothetically call one “The Roman Catholic Archdiocese of Boston, Inc.”, facilitates the ability of individuals to engage in religious practices. It does this through a lot of activities that corporations can engage in: owning property (like churches), entering into contracts (with clergy to perform religious services), owning and controlling bank accounts (to pay for upkeep on the churches and salaries for the clerics), and filing or defending lawsuits (to get bounced tithe checks to make good or to defend against the torts of its agents). Because the entity does all of those things, people can worship. Which is the raison d’etre of that corporation.

      But the corporation itself doesn’t have a soul, it doesn’t have a brain, it doesn’t have a conscience. The people who work for it, who direct and control it, and who donate money to it do have consciences. Religious is about people not about corporations.Report

      • Avatar trizzlor in reply to Burt Likko
        Ignored
        says:

        The people who work for it, who direct and control it, and who donate money to it do have consciences. Religious is about people not about corporations.

        I guess I don’t really see how this is an important distinction in this case. Either the RFRA can apply to corporations or it cannot, what verb we assign to such a corporation doesn’t really change their legal status, does it? The majority opinion argues that:

        1. The RFRA protects non-profit corporations.
        2. “the Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants”
        3. Businesses decisions based on religious doctrine have previously been considered to be religious expression.

        Therefore, the RFRA protects for-profit corporations. What part of this logic is flawed? Or is your argument that the majority opinion is lunacy a philosophical one rather than a legal one.Report

      • Avatar James Hanley in reply to Burt Likko
        Ignored
        says:

        So, Burt, in your interpretation of how the Court should have ruled, could Congress amend ACA to require a non-profit like “The Roman Catholic Archdiocese of Boston, Inc.” to fund contraceptive coverage?Report

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

        @trizzlor “Or is your argument that the majority opinion is lunacy a philosophical one rather than a legal one.” Yes. I disagree with the Court: as I see it, a corporation is no more capable of having a religious belief than it is capable of falling in love, hence my rhetorical question in the OP.

        I notice that Justice Alito’s opinion for the Court sidesteps this just a bit — it says the corporation can engage in religious exercise. That’s not precisely the same thing as having a religious belief which is the showing required under RFRA. I can engage in a religious exercise: I can bow to Mecca and recite a prayer in Arabic five times a day, but that doesn’t mean that my mental state is such that I am engaged in the worship of Allah. More realistically, I might go to Mass and genuflect and recite prayers from memory, but if I were to do that, it would be to please my grandmother and not because inwardly, I thought anything I was doing mattered to some supernatural entity; I can eat the wafer, which is a religious exercise but to me it’s just a cracker. To transform the wafer into the body of Christ requires that I have a religious belief.

        @james-hanley Yes, Congress could, in theory, amend the law such that The Roman Catholic Archdiocese of Boston, Inc. would need to provide contraception coverage or even abortions. Were I on the Court, I would rule that Congress has that power, should it choose to exercise it and I don’t know that today’s decision logically forecloses such a statement of law. Today’s decision does tell us that to get there would involve amendments to both ACA and RFRA, where before this morning’s decision that would seem to have only required a waiver or an amendment to ACA. Now, would Congress ever actually do such a thing, as a matter of political realism? [Shakes magic eight ball] “Prospects seem unlikely.” Hobby Lobby or some other for-profit entity not overtly and obviously affiliated with a particular religion seems a more likely target for such legislation. I’m well aware there’s a sliding scale of such things: a for-profit Christian bookstore, for instance, or to use @will-truman ‘s colorful example, “Carl’s Christian Car Wash, Inc.”

        One interesting thing to note on this point is that Congress has shrunk away from all non-circular definitions of things like “religion” and “church,” so we really don’t know what these things are as a matter of legislative intent. Like pornography, we’re supposed to recognize religion when we see it.Report

      • Avatar James Hanley in reply to Burt Likko
        Ignored
        says:

        @burt-likko

        In some alternative universe you and I are passing each other in the halls of the marble palace on the way to our respective offices, and giving each other the stinkeye over our differing opinions in the case of “The Neapolitan Catholic Archdiocese of Beanville, Inc. v. Barwill”Report

      • Avatar James Hanley in reply to Burt Likko
        Ignored
        says:

        Speaking of which, I was glad to see your comment below about the reduction in 5-4 cases and increase in unanimous cases. And is it your impression, as it is mine, that we have fewer opinions being written along the lines of “I concur with the Court as to parts 1, 3 and 4a and 4c, but dissent as to parts 2, 4b and 4d”?

        If I’m not just imagining that, and it’s an effect of Roberts’ leadership of the Court, I think that’s an important improvement for which he should get more credit than he’ll ever publicly get.Report

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

        It’s actually a trend started by William Rehnquist, or at least was an innovation that took place while he was the Chief. Roberts has made greater unanimity, or at least narrowing out areas of disagreement, one of his goals, and this technique is one he’s deployed to his advantage in that end.

        Another thing that’s happened well, if quietly, under his leadership has been the streamlining of District and Circuit court cases; more civil matters are settling than ever before, although we may be reasonably confident that the populace has grown no less litigious. This is due to a diversion of resources to settlement panels and his encouragement of District Judges to aggressively enforce the front-loaded discovery rules.

        Of course, all anyone ever talks about are the sexy Constitutional cases, but that’s the same as it ever was.Report

      • Avatar Michael Drew in reply to Burt Likko
        Ignored
        says:

        Before you guys get too misty-eyed about the CJ’s likely-to-bt-underappreciated legacy, keep in mind that he is THE guy who’s been in charge of who’s on the FISC since 2005. That’s his baby.Report

    • Avatar Michael M. in reply to trizzlor
      Ignored
      says:

      @trizzlor Is there no meaningful difference between for-profit corporations and nonprofit corporations, aside from the former’s intent to make a profit? It seems to me that RFRA protects nonprofit corporations not because of the “corporate form,” but because nonprofits exist to perform some function or serve some purpose other than making money. That purpose could easily, if not necessarily, be essentially religious in nature, or strongly informed by a particular religious belief. For the purposes of tax code, any organized religion in the U.S. is not a for-profit endeavor.

      Legal fine points aside, what I find frustrating about this ruling is pretty well summarized by @don-zeko above — for-profit corporations have their cake and are eating it too, and eating everyone else’s cake while they’re at it.Report

  15. Avatar veronica d
    Ignored
    says:

    Welp, best snide comment on my Facebook feed today:

    “Corporations are people but women are not.”

    Anyway, yep.Report

  16. Avatar Saul Degraw
    Ignored
    says:

    Serious question and stolen from Marcotte:

    Is Hobby Lobby perhaps and example of winning a battle but losing the war?

    When the case was being argued, A Jewish publication argued that Hobby Lobby winning would be bad for religious minorities like Jews because it would turn people off of religious freedom. Is there going to be a down the road blockback against the religious right because of this decision or have lines already been drawn?Report

    • Avatar LeeEsq in reply to Saul Degraw
      Ignored
      says:

      Marcotte is right on this. Hobby Lobby is an excellent example of winning the battle and losing the war. Conservatives might be happy with glee at the decision but its a victorious battle in the War on Women. Most American women are going to hate this decision and associate Republicans as being a party of mysogynists. Its probably not going to hurt them in the 2014 elections but it will eventually bite their ass in future elections like 2012.

      Its also go to harden stances in the religious-secular debate but the First Amendment severely limits any potential harm to religious people by secular people.Report

    • Avatar Tod Kelly in reply to Saul Degraw
      Ignored
      says:

      No, I think not.

      People are absolutely right when they argue that had it been a different minority that was the plaintiff, most of the pundits talking about HL would be on opposite sides of their current arguments. If another such case arises tomorrow, everyone will go back to their assigned position. I don’t see anyone coming out of this being more or less “religious-freedom oriented” than they were before — allowing, of course, for whatever definition of what “religious freedom” means that they personally held prior.

      If there is to be any winning-battle/losing-war outcome, I suspect it will be for anti-ACA conservatives. I think HL is one more chink in the armor of this idea that if you make just enough compromises to the concept of universal healthcare, everyone will be happy. Despite what a lots people here and elsewhere are implying, an anti-birth control position isn’t elite, mainstream, or majority. I think this case will be one more step in conservative’s ongoing and unwitting push that eventually nationalizes healthcare in the US.Report

      • Avatar veronica d in reply to Tod Kelly
        Ignored
        says:

        @tod-kelly — “I think this case will be one more step in conservative’s ongoing and unwitting push that eventually nationalizes healthcare in the US.”

        From your mouth to God’s ear.Report

      • Avatar Jim Heffman in reply to Tod Kelly
        Ignored
        says:

        “People are absolutely right when they argue that had it been a different minority that was the plaintiff, most of the pundits talking about HL would be on opposite sides of their current arguments.”

        The RFRA exists because of drug use by a racial minority. It had near-unanimous support in both houses of Congress.Report

      • Avatar Saul Degraw in reply to Tod Kelly
        Ignored
        says:

        Considering Kennedy’s concurrence, you might be right.Report

    • Avatar veronica d in reply to Saul Degraw
      Ignored
      says:

      Well, folks say the same thing about gay rights, so this is part of the whole “overreach” argument. Anyway, I dunno. Women are not happy about this, while religious conservatives are. (Okay, so some folks are both. Let me get away with being general.) But in terms of the big-broad social battles? It is clear which side is winning.

      Which, I mean, I’ve never been to a Hobby Lobby, and I have no idea if they are in Massachusetts. But, like, would you want to own one here?

      If you were a woman with any choice at all, would you go work there? Or a man who cares about women’s issues?

      I mean, yeah, if you were a right winger. Fine. But they have just limited themselves a lot in attracting a huge segment of top talent. They are now marked.

      Which does not make this okay, since not everyone in the job market counts as “top talent” and those people matter also.

      But yeah, in the big culture war this is a blip.Report

      • Avatar Patrick in reply to veronica d
        Ignored
        says:

        Probably this.Report

      • Avatar Michael Cain in reply to veronica d
        Ignored
        says:

        The company’s web site claims 628 stores in 47 states. There are a couple of stores in Massachusetts. All Hobby Lobby stores are owned by the corporation. So I expect that if this turns out to be a big deal in Massachusetts — big enough that the stores are not profitable — the home office simply shuts them down, no big deal. I’ll disagree on the talent thing, just because they were already marked for anyone considering working there at a position where talent is a thing.Report

      • Avatar veronica d in reply to veronica d
        Ignored
        says:

        @michael-cain — Well, yeah I think whatever goodwill they lost, they lost it before the case really began. Just bringing the case likely did the damage. That said, winning the case will not make women like them any more.

        There are a non-zero number of right wingers in MA, so they might not go out of business completely, but there are opportunity costs. Will they expand here? Will they thrive? And saying “Just shuts them down, no big deal” is true, except like weren’t they hoping to make profit with those stores? Are they dooming themselves to be regional?

        Regarding talent, I really don’t know the hobby retail industry, how much talent matters there and how hard it is to find. My only basis of comparison is the software engineering world, where this would be business suicide.

        But software engineering talent is maybe kind of a thing all its own. Dunno.Report

      • Avatar Michael Cain in reply to veronica d
        Ignored
        says:

        There’s also the possibility that Hobby Lobby customers are already a demographic that is quite different from national averages. After all, there are millions of women in the US that believe birth control, and especially emergency birth control, is immoral. How does that overlap with the population that needs the kinds of hobby supplies in which Hobby Lobby specializes?Report

      • Avatar veronica d in reply to veronica d
        Ignored
        says:

        @michael-cain — I’m sure it depends on region. I can say up here there is an enormous overlap between “women into arts and crafts” and “women who are solid feminists.” But in Alabama? Rural Ohio? I dunno. I kinda suspect it is the opposite in those places.

        I mean, this is me making wild-ass-guesses, but I bet there is a pretty solid red-state-blue-state divide here.

        So, I guess some folks still watch Duck Dynasty. The same folks will likely shop Hobby Lobby.Report

      • Avatar James Hanley in reply to veronica d
        Ignored
        says:

        @michael-cain

        I don’t know if you shop in Hobby Lobby. I do, because my kids buy arts and crafts stuff there. I can’t say that the clientele looks particularly churchy to me. Looks to be a pretty representative slice of the whole community.Report

      • Avatar Jim Heffman in reply to veronica d
        Ignored
        says:

        “[Hobby Lobby looks] to be a pretty representative slice of the whole community.”

        What’s happened in the past couple of years is that the Internet stopped being default-liberal. It used to be associated with owning a computer and internet access, which pretty much restricted it to college denizens and recent graduates, demographics which are overwhelmingly liberal. Older adults with jobs didn’t have internet access at work so they couldn’t spend all day taking part in the global conversation.

        With the advent of smartphones and cheap mobile access, that’s different. Your mother and your grandmother, and the guy who owns the auto parts store, and the lady who works in the Safeway deli; they can all be on the internet all day now, too (although we hope the deli lady washes her hands first so we don’t get too much Spam on Facebook.) What’s happening is that people who are default-liberal are now learning that they aren’t the only people in the world, and it’s a “nobody I know voted for Nixon” moment.

        So all of those people who used to just shut up and keep their opinions to themselves (because they thought that they were isolated in a hostile community) now realize that they have backup, that there are thousands of people who think like they do, and they’re getting increasingly less afraid of saying “hey, I believe in Jesus, I try to live my life that way, and I’m not gonna play go-along-to-get-along anymore”. Because if your daughter gets mad at you, well, you can go on Facebook and see what new inspirational Bible messages are there, and look at pictures of someone else’s kids happy in church.Report

      • Avatar Kim in reply to veronica d
        Ignored
        says:

        Jim,
        Nice try, but that DDOS research study came out when Gore was running for President.
        (Researcher intentionally posted an article saying that Gore would win, which naturally made the Republicans haul out a buncha bots).Report

    • Avatar LWA in reply to Saul Degraw
      Ignored
      says:

      As to Marcotte’s question, I don’t think that LWA, Saul, Lee, or Tod really get to decide this, do we?

      Women- all women, right left and center- are going to look at this and draw their own conclusions as to which tribe is more friendly or threatening to their needs and interests.

      There probably are some women who are cool with their boss being able to decide if her contraception is insured or not. I’m betting there are a lot more who don’t.Report

  17. Avatar morat20
    Ignored
    says:

    I think corporate ‘personhood’ as a legal concept just leads to weird freakin’ places. Which makes me sincerely question whether it’s a good idea.

    Why, exactly, do we have the concept of corporate personhood in the first place, and is there a better method of achieving those goals that doesn’t lead to weird places?

    Having said that, I’m also wondering how this and Citizen’s United will stand the test of time. Perhaps it’s just my turn to stare slack-jawed at a case that will go down as bedrock law for the ages. 🙂Report

    • Avatar Saul Degraw in reply to morat20
      Ignored
      says:

      We have incorporation and corporate personhood to allow people to take risks and generate wealth without putting their personal assets at stake.Report

      • Avatar morat20 in reply to Saul Degraw
        Ignored
        says:

        Yes, I get how incorporation works and how it’s there for liability reasons (among others). But corporate personhood — how does that work? What goal is being furthered there? Why is it in law?

        Now I’m speaking mostly of for-profit’s here (non-profits are different enough that I think they should be viewed as their own case).

        Specifically — what’s it there for? It doesn’t act as a shield to personal assets, it’s not there to establish an entity that exists even as owners or investors come and go.Report

      • Avatar Burt Likko in reply to Saul Degraw
        Ignored
        says:

        IMO, corporate personhood does both those things, @morat20 , and it also fulfills the important role of “sue or be sued.”Report

    • Avatar Brandon Berg in reply to morat20
      Ignored
      says:

      What weird places do you think it leads? I’m referring to the actual legal concept, not the strawman version.Report

    • Avatar LeeEsq in reply to morat20
      Ignored
      says:

      If it makes it easier to understand, the first corporations were not commercial organizations but cities and religious bodies like monasteries. By declaring a city or a monastery to be a legal person, it allowed them to survive after the deaths of the original founders as legal entities by giving them an independent legal existence. For centuries most commercial businesses were sole proprietorships or partnerships, where the legal identity of the business and its owners were the same. That meant that the entirety of business owner’s property were at stake to pay any debts of a business. This made a lot of people really reluctant to invest in a commercial interprise. During the late 16th century, the idea of limited liability emerged where a business owner would be only liable for what they invested into a business. During the 19th century, the idea of limited liability was combined with that of corporations so that corporations would have an independent legal existence from their owners.Report

      • Avatar Saul Degraw in reply to LeeEsq
        Ignored
        says:

        This is the Lee that I like to see. I did not know that stuff.Report

      • Avatar morat20 in reply to LeeEsq
        Ignored
        says:

        It sounds like ‘corporate personhood’ is bound up in the whole incorporation concept.

        But why is it mixed with ‘personhood’ in the sense of individuals? As noted upthread, Hobby Lobby has to sign an affidavit about it’s religious beliefs as a company in this case (and to claim an exemption like the non-profits), but company’s literally don’t have hands — so really, an actual person somewhere is signing this on Hobby Lobby’s behalf.

        Hobby Lobby literally has no actual religious beliefs — it’s owners do, it’s board does — and perhaps in many cases the board and owners are the same person or people, in which case one actual human voice can speak for Hobby Lobby on a corporate level.

        But many don’t. Lockheed Martin, for instance, most certainly doesn’t. But now where in this weird place where a collection of board members, investors, and stock owners are somehow able to express ‘religious belief’.

        I’m still confused over Citizen’s United, to be honest. (I mean, literally — I don’t get it. Every individual in a company, from the ground up, can donate time, money, or speech to politics. Why the aggregate can do so again, which seems a bit doubled, is beyond me).

        *shrug*. I guess my objection boils down to I feel there’s an actual difference between ‘human beings’ and ‘a company run by or owned by humans’ and that the whole concept of corporate personhood, well — I’m not sure why we’ve suddenly started treating corporate personhood as being more akin to an actual person and less like a useful legal analogy.

        IE: Corporations can sue and be sued, yes. But they can’t be thrown in jail. They can’t vote. But apparently they can have religious objections, and I suppose could dodge the draft if they could be drafted.

        Basically, it really feels like someone’s exploiting the hell out of a loophole — a corporation is like a real person when it’s convenient for the corporation, and totally NOT like a real person when it isn’t.Report

      • Avatar Jim Heffman in reply to LeeEsq
        Ignored
        says:

        “But why is it mixed with ‘personhood’ in the sense of individuals? ”

        Why should I give up some of my rights (free speech, religious expression, freedom from unlawful search and seizure) just because I choose to exercise some others (freedom of assembly)?Report

      • Avatar Jaybird in reply to LeeEsq
        Ignored
        says:

        I’m still confused over Citizen’s United, to be honest. (I mean, literally — I don’t get it. Every individual in a company, from the ground up, can donate time, money, or speech to politics. Why the aggregate can do so again, which seems a bit doubled, is beyond me).

        I’d suggest not looking at it like that, but looking at it like this:

        The government can’t prevent an individual in a company from donating time, money, or speech to politics. As such, the government should not be able to prevent the aggregate from doing so.

        Remember: the original case centered around a movie that was censored and, in the arguments given before the supreme court, the government argued that it had the power to ban books under the statute in question.Report

      • Avatar morat20 in reply to LeeEsq
        Ignored
        says:

        Why should I give up some of my rights (free speech, religious expression, freedom from unlawful search and seizure) just because I choose to exercise some others (freedom of assembly)?

        You don’t. What prevents the board of, say, Hobby lobby from getting together to do so? Why do they need to use a corporate setup to do so?

        Hobby Lobby isn’t a person. It’s owners are people. It’s board are people.

        The whole point of a corporation is to sever these owners with the company, to prevent liability. So why do they get to donate personal AND corporate money, separately? Again, it seems like they want all the upsides (protection from liability) and none of the downsides (Hobby Lobby is not it’s owners, it’s a separate entity and not a person. It’s a corporation).

        That continues to be my real issue with this whole concept — nothing stops the Board of Bob’s Taco Corp from getting together, in aggregate, and creating a PAC. Or a 501 or whatever it is.

        Literally how is denying Bob’s Taco Corp from donating funds or times a violation of the Board’s right to assemble?

        Even with ‘closely held’ companies it really feels like a case of having it both ways. I don’t see why a limited liability company or a corporation, which is specifically set up to firewall the owners FROM the corporation (specifically their assets) is suddenly so tied into the owners. It’s like there’s a firewall, but it’s only one-way.Report

      • Avatar DavidTC in reply to LeeEsq
        Ignored
        says:

        @morat20
        but company’s literally don’t have hands — so really, an actual person somewhere is signing this on Hobby Lobby’s behalf.

        An actual employee is doing it. Doing something the company just claimed, under oath, is an exercise of religion. Hired by a company subject to employment religious anti-discrimination laws.

        As I keep asking, what happens if this person decides to not participate in this admitted exercise of religion? Or a person who would not participate in this exercise of religion wants that job?Report

      • Avatar morat20 in reply to LeeEsq
        Ignored
        says:

        It gets better. Hobby Lobby is “closely held” (which the Courts felt was key) that means 5 or fewer owners, right?

        Well, assuming equal shares — what if 3 people felt it was against their religion and 2 didn’t? Or 3-2 in favor of supporting Bob the Political or the Bob Party?

        Is 60% a “religious expression?” — or assembly, what about the 40% of the owners who are being forced to support Bob’s party via their closely held corp?

        Kowal above notes that he feels it’s an awful choice to make religious people choose between limited liability and their religion — what about when religious people get out-voted on what their religion means?

        Does that just not count? I guess “undue burden” boils down to who has 51% of the shares. That guy can be burdened, but the guy owning 49% — well, it’s a corporation, right. He got out-voted.

        Again, it seems this is all awfully convenient. Separation of owners and company only when it’s convenient for the majority owners, and not when it’s not.Report

      • Avatar Jim Heffman in reply to LeeEsq
        Ignored
        says:

        “What prevents the board of, say, Hobby lobby from getting together to do so? Why do they need to use a corporate setup to do so?”

        So forming a corporation is a special different kind of assembly that’s restricted in some ways? I’m not sure that kind of thinking is a box you want to open.Report

      • Avatar morat20 in reply to LeeEsq
        Ignored
        says:

        So forming a corporation is a special different kind of assembly that’s restricted in some ways? I’m not sure that kind of thinking is a box you want to open.
        Is a corporation assembly? Have I assembled with Lockheed Martin because I own stock — or work there? Is it an assembly as understood in the First Amendment? (I would argue absolutely not — you’re welcome to point me to any court cases from the first century of the US in which a workplace was considered a first amendment assembly).

        I’m pretty freaking sure that’s a box I want to open, because I think you’re assuming your argument. You’re claiming BobCo is an assembly, as pertains to the First Amendment.

        Really? Who is assembling — and how is BobCo intergral to this ability? How does barring BobCo from, say, donating to a campaign fund restricting their rights? How does the law handle a 3-2 split in favor of BobCo donating to a campaign? Isn’t that trampling on the minority, forcing them to donate to a political cause against their will?

        I’m not aware of any other assembly in which a handful of people can apparently force the rest to do what they want — and you seem to think it’s crazy-talk to ask if that’s really an assembly?Report

      • Avatar Jim Heffman in reply to LeeEsq
        Ignored
        says:

        “Have I assembled with Lockheed Martin because I own stock — or work there?”

        Well, according to many snarkers, Hobby Lobby is profiting directly from the sale of contraceptives, because (some of) its investments (made on its behalf by fund managers) are in companies that (are involved with) manufacture of (materials used in) contraceptives.

        So I’d say that yes, in popular understanding, owning stock is a form of assembly.Report

      • Avatar morat20 in reply to LeeEsq
        Ignored
        says:

        Nah, that’s just an example of hypocrisy.Report

  18. NobAkimoto NobAkimoto
    Ignored
    says:

    Burt: Is my reading wrong or did the opinion also basically state that because the government presents alternatives and exemptions that it can’t demonstrate a compelling interest: Ergo government should just offer what it offers to religious non-profit employers?

    So doesn’t this mean that Hobby Lobby employees will now be eligible for the free insurance rider that religious non-profit employees are able to get to cover contraceptive services and “abortifacents”?Report

    • Avatar Patrick in reply to NobAkimoto
      Ignored
      says:

      I would think so.Report

    • Avatar Burt Likko in reply to NobAkimoto
      Ignored
      says:

      I’m not confident enough to say yes or no here. I don’t know if the rider goes along with a for-profit that gets the same exemption a non-profit does or whatever other issue might come up to block that result.

      The cynic in me wants to say: “Whatever result makes it the hardest for Hobby Lobby employees to get contraception, that’ll be what happens.” Maybe I shouldn’t be that cynical.Report

    • Avatar Mark Thompson in reply to NobAkimoto
      Ignored
      says:

      I don’t think that it’s automatic, but as the “rider” (and indeed, IIRC, the contraceptive mandate itself) was created by executive rule-making rather than by statute, it should not be a problem for the Obama Administration to change the rules to provide for it within a relatively short period of time.Report

  19. Avatar Mark Thompson
    Ignored
    says:

    It seems worth mentioning that there’s actually a silver lining in here for liberals that is not insignificant. Alito’s opinion expressly assumes that the government has a compelling interest in the contraception mandate – that is a concession that he didn’t need to make; if he just didn’t want to reach that issue, he could have said that he wasn’t reaching that issue, but instead he outright concedes it. That may well have positive implications for women’s issues more broadly.

    The reason the mandate was overturned as applied to Hobby Lobby, et al was that there were less restrictive means for achieving that compelling interest, which were not merely hypothetical but instead had already been put in place. Agree or disagree with that, it’s hardly an outlandish conclusion, and it’s also a conclusion that I think keeps the Court’s holding here fairly narrow.Report

    • Avatar Burt Likko in reply to Mark Thompson
      Ignored
      says:

      If a concession made arguendo is a silver lining, then it’s been hammered pretty thin.Report

    • Avatar phoebesmother in reply to Mark Thompson
      Ignored
      says:

      Although I will not cease being upset at the symbolic baggage of this decision, which feels fairly like “it’s just a woman’s thing and why don’t they just pay for it themselves if they want ‘consequence free sex’ ” [make me a sammich why doncha] —

      I do understand the “least restrictive means” and “government interest” aspects of your discussions, but just don’t understand why Alito felt he had to assure us this wouldn’t apply to “blood transfusion” religious objections. What “government interest” is there in requiring they be paid for by closely-held Jehovah’s Witnesses and (I think) Rastafarian businesses that trumps that of contraception (vaccinations are clear public health purposes). The Supreme Court and lesser State Courts have required blood transfusions have they not? Is it their (JW and Rastas) status as minority religions that can question their sincerely held beliefs and can override them? I appeal to all the lawyers on the board.Report

      • Avatar veronica d in reply to phoebesmother
        Ignored
        says:

        Right. This thing is swimming in gender from tip to tail and women see this clearly, since we are its target — long have we been the target of religious oppression. These are small battles which illustrate in stark relief why “the right” (broadly defined) has no place for women.Report

      • Avatar Dave in reply to phoebesmother
        Ignored
        says:

        Given that the question before the Court was about four different kinds of contraception, there was no reason for the Court to go beyond the specifics of that case.Report

  20. Avatar Saul Degraw
    Ignored
    says:

    I would also like to point out that days like this are when I go into lawyer curmudgeon mode because all my non-lawyer friends begin bashing the Courts and RFRA and I need to point out that if they got rid of the Supremes, it would also mean chucking a lot of liberal decisions and that the RFRA is good law even if it is being poorly or wrongly applied in this situation.

    Yet I am dealing with emotional venting here and probably should not lawyersplain.Report

    • Avatar Jim Heffman in reply to Saul Degraw
      Ignored
      says:

      As I said in another comment, it’s important to remember that the RFRA was enacted to protect minority rights, has not been unimportant or unuseful in that area, and was brought into law with overwhelming bipartisan support during the prime of Bill Clinton’s presidency. It’s not like this is some crazy Republochristian crap.Report

  21. Avatar Will Truman
    Ignored
    says:

    @mark-thompson @burt-likko So I am hearing on Twitter that the judgment in favor of corporations having 1st Amendment Rights (including religion) was actually 7-2, with two arguing that though the corporations do have such rights they lose here on other grounds. Is this right? Can someone who is following me closer on this clarify?Report

    • Avatar Mark Thompson in reply to Will Truman
      Ignored
      says:

      That’s not entirely correct. First, technically speaking, none of the justices found a First Amendment claim, and only the dissent even reaches the First Amendment claim. That’s because technically speaking Employment Division v. Smith is still the controlling precedent on First Amendment free exercise issues, and would clearly result in the mandate being found Constitutional. So on that score, the Plaintiffs technically lost 0-4.

      As to the issue of standing, it’s not quite right to say that it’s a 7-2 decision. Instead, Justices Breyer and Kagan just declined to address that issue, saying that in their view all that mattered was that there was no violation of RFRA. If they were convinced of the existence of standing here, they could have joined those parts of Alito’s opinion but dissented as to the rest. Similarly, if they were convinced of the lack of standing, they’d have joined Justice Ginsburg’s entire dissent, rather than just the portions dealing with whether the mandate satisfies RFRA. In essence, those two Justices punted on the standing question. I suspect there was some behind the scenes politicking that led to them trying to punt on the standing issue. I’d also wager that one of them (Breyer?) would have otherwise ruled in favor of standing and the other would have ruled against but they were trying to present a united front in order to lobby Kennedy without losing Ginsburg and Sotomayor, but that’s just pure speculation.Report

    • Avatar kenB in reply to Will Truman
      Ignored
      says:

      Actually 5-2 (and not 1st Amendment but RFRA) — two justices would rule against Hobby Lobby without reaching this point. See Volokh.Report

    • Avatar Will Truman in reply to Will Truman
      Ignored
      says:

      Mark & Ken, thanks for the clarification.Report

    • Avatar Burt Likko in reply to Will Truman
      Ignored
      says:

      Well, it sure isn’t based on the Ginsburg dissent:

      Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opinion concurring in part and dissenting in part). [] the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. … To reiterate, “for-profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].” Gilardi, 733 F. 3d, at 1242 (Edwards, J., concurring in part and dissenting in part). (Ginsburg dissent, slip op. at 14, emphasis added)

      So it ain’t Ginsburg. Breyer and Kagan declined to join this portion of Ginsburg’s opinion because they thought it unnecessary, so they didn’t say that for-profit corporations can’t have religious beliefs. Rather, they were silent on the issue. FWIW, I agree with Justice Ginsburg and consider this the dispositive issue in the case — but that’s the minority opinion here.Report

  22. Avatar Jaybird
    Ignored
    says:

    I will trade both Harris v. Quinn and Burwell v. Hobby Lobby Stores, Inc. for Wickard v. Filburn.Report

    • Avatar Jim Heffman in reply to Jaybird
      Ignored
      says:

      Fuckin’ A.

      It should be kept in mind that the RFRA exists because of the War On Drugs, and is a big-government solution to a problem that is now causing terrible trouble when used by the “wrong” people. RFRA is basically everything that the Libertarian Party hates.Report

  23. Avatar Mike Schilling
    Ignored
    says:

    By the way, a clarification to much of what’s been said here. Hobby Lobby’s position is not a general objection to contraception; it’s an objection to abortion plus a dubious belief that certain widely used forms of contraception cause abortions. That is, HL is now, by law, entitled to impose on its employees not only its owners’ religious beliefs but their ill-informed opinions.Report

    • Avatar DRS in reply to Mike Schilling
      Ignored
      says:

      Yeah, I was thinking about that as I read Rod Dreher’s site today with its yay-religious-liberty! post and the comments beneath it. It seems to me this is one of those things that’s going to bite the God-Botherers in the collective ass down the road. Do you really want the court – any court – making decisions on what constitutes religious liberty? Evaluating whether something really is based on religious understanding or whether it’s the equivalent of a strongly believed in superstition? Rod Dreher seems to think that all anyone has to say is “Religious Liberty” like some kind of incantation and everyone is obliged to accept it without question.

      There was a case a few years ago of a girl at a school who refused to wear some kind of identification tag because it was the Mark of the Beast and everyone knew what was in the Book of Revelation about that. But if it had gone to court a good lawyer could have argued that the religious denomination she belonged to had a faulty understanding of what was simply a book of the Bible condemning the Emperor Nero and had nothing to do with the future end of the earth. Then watch the fun really start.Report

      • Avatar Jim Heffman in reply to DRS
        Ignored
        says:

        “Do you really want the court – any court – making decisions on what constitutes religious liberty?”

        Do you really want the court — any court — making decisions on what constitutes illegal search and seizure? Free speech? Disparate racial impact?

        “Rod Dreher seems to think that all anyone has to say is “Religious Liberty” like some kind of incantation and everyone is obliged to accept it without question.”

        He’s right. We are required to accept, without question, that the person claiming that they hold a particular religious belief actually holds that belief and that it’s actually religious. Per the RFRA, we must (or, as some would see it, may) then go on to determine whether the government action in question actually interferes with that belief, whether the government needs to do that particular thing, and whether there’s a reasonable non-interfering way the government could do it.Report

      • Avatar Burt Likko in reply to DRS
        Ignored
        says:

        I question the extent to which we must take someone at their word about their religious beliefs; there is a point beyond which we will clearly have crossed the line of good faith. Agreed that finding where that line is will be a particularly difficult exercise.

        But when a prisoner sues the government, claiming “My religion forbids me from eating chunky peanut butter, I can only eat the creamy kind, and yes, as a matter of fact I am the High Priest of the Church of Finely-Ground Roasted Salted Legumes and we hold chunky peanut butter to be a heresy” perhaps you’ll agree with me that we ought not to treat this element of the cause of action as a “gimme.” And that day is coming, mark my words.Report

      • Avatar Jim Heffman in reply to DRS
        Ignored
        says:

        “I question the extent to which we must take someone at their word about their religious beliefs…”

        It’s like when someone says that you weren’t for real exercising your First Amendment rights, you were just being a jerk, and so it’s OK for us to put you in jail for treasonous criticism of an elected official.

        “when a prisoner sues the government, claiming “My religion forbids me from eating chunky peanut butter…”

        Ah-heh. Maybe you mean when a (Muslim) prisoner sues the government, claiming that his religion forbids him from eating hot dogs?Report

      • Avatar Burt Likko in reply to DRS
        Ignored
        says:

        Don’t change the hypo. What about the Peanut Butter Priest? Are you prepared to take him at his word as effortlessly as the way you’re prepared to take the Muslim’s?Report

      • Avatar Mo in reply to DRS
        Ignored
        says:

        Not eating pork for Muslims is a centuries long held tradition and unless they’re serving kosher dogs, there’s pork in hot dogs. There’s no factual conflict and no “he just made up a belief” factor. OTOH, claiming that IUDs are abortifacients starts getting into areas that are scientifically provable and I’m not sure we want science going up against religion in a court case.Report

      • Avatar Mike Schilling in reply to DRS
        Ignored
        says:

        SInce you could answer his complaint by simply not giving him any peanut butter, and you’d do that anyway if he was allergic, what the hell?

        When he’s the grand high exalted mystic ruler of the church of only eating filet mignon, there’d be a problem.Report

      • Avatar Marchmaine in reply to DRS
        Ignored
        says:

        Well, this is a tension particular to America – the free exercise of religion absent a definition of religion begs the question.

        Now, the Catholic Church has a long history of signing Concordats with Nations hostile and other… so I’m ok with a definition of the relationship between the Church and these United States.

        But, a) I’m pretty sure that is constitutionally (not to mention politically) impossible, and b) doesn’t answer for the decentralized sects/religions that couldn’t (or wouldn’t) enter in to a treaty with the state.

        We could, however, amend the constitution to define the religions approved by the state – there are quite a few countries that do that and I’m sure would have templated language for us to borrow.Report

      • Avatar DRS in reply to DRS
        Ignored
        says:

        J-Heffman missed my point, I think. The issue is not whether someone believes but whether what they belief is actual religious doctrine. At some point in time there’s going to have to be some kind of determination of whether someone’s really-truly-strongly-deeply-felt belief is actually an accurate understanding of their religion. Religious types believe some very weird things. Faith healing? Wiccanism? Who gets to decide the difference between a cult or a religion? Thin edge of the wedge coming up.Report

      • Avatar Jim Heffman in reply to DRS
        Ignored
        says:

        “What about the Peanut Butter Priest?”

        Just don’t give him peanut butter, then.

        Unless, of course, the prison is in some situation where the only foodstuff available was chunky peanut butter. In which case providing a different food would present an insurmountable burden to the government; and, per the RFRA, they’re allowed to cite that as a reason for not accommodating the claimed religious belief.

        *****
        “At some point in time there’s going to have to be some kind of determination of whether someone’s really-truly-strongly-deeply-felt belief is actually an accurate understanding of their religion.”

        Perhaps we could use the Truly Religious Quotient Meaning/Association-Determinant Algorithm (TRQMADA) to do that.Report

  24. Avatar Kazzy
    Ignored
    says:

    @mark-thompson @burt-likko

    Hobby Lobby’s “retirement plan had more than $73 million invested in funds with stakes in contraception makers.”

    Could/should the court have considered this with regards to the sincerity of their objection?

    To me, it’d seem appropriate. If they sincerely object to contraception such that they seek exemption from federal law, it would seem reasonable to expect this objection to carry through throughout their business model.Report

    • Avatar Burt Likko in reply to Kazzy
      Ignored
      says:

      As I just colloquied with @jim-heffman above mere seconds ago, for the most part the sincerity of a claimed religious belief is treated as a “gimme” by the courts. If you claim it’s religious and you sincerely believe it, it is. For the most part, that’s going to be correct. I’d like to note for the record that there might be some reason, in an appropriate case, to question the sacredness of that particular cow. But mostly, government lawyers don’t dare question an asserted religious belief lest they seem like bigots.Report

    • Avatar Mark Thompson in reply to Kazzy
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      says:

      IIRC, the government conceded the sincerity of the religious beliefs early on. I never thought that to be a particularly wise concession. That said, I think that particular line of attack is not the strongest – the response to it might be that it would be unrealistic to expect them to investigate the fine details of every single company in which its employees’ mutual funds invest.

      The stronger line of attack, IMHO, would have been the one that our own Pat Cahalan described awhile back: that the insurance mandate is not a substantial burden on free exercise because insurance is functionally indistinguishable from other forms of compensation and, moreover, there is nothing preventing HL from prohibiting its employees from using these forms of contraception regardless of whether they are covered by insurance.Report

      • Avatar Will Truman in reply to Mark Thompson
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        says:

        That’s been my view from the start. The “substantial burden” argument from HL is questionable. I was willing to be proven wrong, but I never saw that convincing argument that convinced me. (I think that even granting that, I still would have had an issue with the fact that there was a less intrusive mechanism to achieve the same result.)Report

      • Avatar Kazzy in reply to Mark Thompson
        Ignored
        says:

        Wait… The gov DIDN’T make that argument?

        Face palm.Report

      • Avatar kenB in reply to Mark Thompson
        Ignored
        says:

        But isn’t that line of attack basically ruled out by the fact that the administration already granted an exemption to non-profits?Report

      • Avatar Burt Likko in reply to Mark Thompson
        Ignored
        says:

        No, the government did not make that argument.Report

      • Avatar Mark Thompson in reply to Mark Thompson
        Ignored
        says:

        @kenb I don’t think so. Something can be a “burden” without being a “substantial burden,” I would think. Regardless, the exemption issue was always a bigger problem for the “least compelling means” portion of the test rather than the “substantial burden” issue. But if there’s no substantial burden, then there’s no need to even reach the least compelling means part of the test.Report

      • Avatar Patrick in reply to Mark Thompson
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        says:

        @mark-thompson

        The stronger line of attack, IMHO, would have been the one that our own Pat Cahalan described awhile back: that the insurance mandate is not a substantial burden on free exercise because insurance is functionally indistinguishable from other forms of compensation and, moreover, there is nothing preventing HL from prohibiting its employees from using these forms of contraception regardless of whether they are covered by insurance.

        I would just like to state for the record that when someone, who knows what they’re talking about in a field in which you are – at best – an armchair practitioner, says, “Hey, that’s a good argument”, that’s nice to hear.Report

      • Avatar Mike Schilling in reply to Mark Thompson
        Ignored
        says:

        Yeah, the Obama administration didn’t tell a group of professing Christians that they’re full of it. Honestly, does that surprise anyone?

        the response to it might be that it would be unrealistic to expect them to investigate the fine details of every single company in which its employees’ mutual funds invest.

        But when those companies buy political ads, they’re definitely representing the views of their stockholders, even the ones that have no idea they’re stockholders. That’s what Citizens United says, right?Report

      • Avatar Mark Thompson in reply to Mark Thompson
        Ignored
        says:

        @mike-schilling Not at all, actually. CU explicitly leaves open the right of shareholders to sue for breach of fiduciary duty in those cases. That may or may not be a satisfactory remedy, but it is in fact something that was acknowledged.

        I’ve said this before, I’ll say it again – speech doesn’t cease to be speech just because it’s on corporate letterhead, and the 1st Amendment protects speech, full stop, regardless of the source.Report

      • Avatar Mike Schilling in reply to Mark Thompson
        Ignored
        says:

        Not at all, actually. CU explicitly leaves open the right of shareholders to sue for breach of fiduciary duty in those cases.

        Yes, and I’m definitely going to pore over my mutual fund statements, figure out what dates I owned bits of various companies, find out what political ads they wre involved in (yeah, good luck on that) and cross-check all that against …

        The dates ads I dislike were commissioned? Paid for? Aired?

        I’m sure I have the legal right to teleport to the moon, too.Report

      • Avatar Jaybird in reply to Mark Thompson
        Ignored
        says:

        I’ve said this before, I’ll say it again – speech doesn’t cease to be speech just because it’s on corporate letterhead, and the 1st Amendment protects speech, full stop, regardless of the source.

        Maybe we could demonstrate that political ads were actually prayers?Report

      • Avatar Patrick in reply to Mark Thompson
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        says:

        I’ve said this before, I’ll say it again – speech doesn’t cease to be speech just because it’s on corporate letterhead, and the 1st Amendment protects speech, full stop, regardless of the source.

        Publicly held companies have a fiduciary responsibility to shareholders. US-GAAP exists to ensure that corporate officers aren’t running away with the kibble.

        I see no reason why we cannot require that corporate officers disclose political contributions on their financial statements. The shareholders have a right to know if a company is incurring expenses that affect its bottom line.

        Then if GM wants to donate fifty million dollars to thirty congresscritters and those thirty congresscritters don’t vote to bail out GM, well, the shareholders can say, “you are not being fiscally responsible with my money” and bail.Report

      • Avatar Mad Rocket Scientist in reply to Mark Thompson
        Ignored
        says:

        Thinking out loud here:

        Given that the government lawyers are (most likely) not idiots, they had to have thought about Patricks line of reasoning. Since I agree it is the stronger argument, the fact that it wasn’t employed in any way I’ve heard of makes me think the strategy that was employed was done so for political reasons.

        I.E. It wasn’t enough to just win, they had to win in a specific way.

        Now before you all start hunting for the reply link to tell me how wrong I am, let me kick this can around a bit. Remember I am thinking out loud here. Lets say the administration had two paths to victory here. One had a strong chance of working, maybe even getting a stronger victory, but if successful, would likely leave the question of religious freedom & corporate personhood out of the decision in any significant way. The other path was less certain, so much so that it was certain the 5 staunch conservatives would rule against it, and the 5 staunch liberals would enthusiastically rule for it, with Kennedy hanging in the balance. Even if Kennedy had ruled for it, but offered a different, but concurring, opinion, the victory would be had.

        Now why would the administration take the less certain path? Because of Citizens United. Democrats are under a lot of pressure to do something about CU (even if they probably don’t want to, since whatever they do hamstrings themselves as well). A SCOTUS ruling that attacks the rights of corporations could be spun as precedent that could be used to make headway against CU. Here is where I get fuzzy on the details, since IANAL & I don’t even play one on open access cable.

        Anyway, if I am right, it seems like a pretty boneheaded move, since Kennedy voted for CU, and was unlikely to now vote against a similar case.

        Thoughts?Report

      • Avatar Mad Rocket Scientist in reply to Mark Thompson
        Ignored
        says:

        Err, 4 staunch conservatives & 4 staunch liberals. This isn’t FDRs court.Report

      • Avatar Patrick in reply to Mark Thompson
        Ignored
        says:

        Seems a little 11-dimensional chess to me, but what the hell, maybe that’s what happened.Report

      • Avatar Mad Rocket Scientist in reply to Mark Thompson
        Ignored
        says:

        @patrick

        Yeah, as I was writing, I kinda got that feeling myself, that perhaps I was reading too much into it.

        But the Obama administration does seem to heavily way the politics of everything into every decision & action they make, so perhaps they decided to try their hand at 11D chess. Obviously without a String Theorist on hand, since they lost.Report

    • Avatar Michael Cain in reply to Kazzy
      Ignored
      says:

      Does it matter that insurance coverage is something that gets negotiated once per year, but to keep the pension fund out of funds that are invested in companies that produce birth control products is a daily — possibly an hourly — chore? In these days of synthetic derivatives and such, possibly an impossible chore. Plus, constantly moving money between funds gets… expensive. I’m always amused when, for example, an educational institute announces that it will not invest in “conflict minerals” or such. Maybe not directly; but they’ll never know how much of their money is invested there indirectly.Report

      • Avatar Will Truman in reply to Michael Cain
        Ignored
        says:

        Can a company outsource that? Like by way of mutual funds with stipulations? I don’t know how a lot of this works.Report

      • Avatar Kazzy in reply to Michael Cain
        Ignored
        says:

        @michael-cain

        Maybe, but if they care so much that they took a case to the Supreme Court to deny female employees access to vital medication, you think they’d care enough to manage their finances accordingly. I mean, eternal damnation is at stake!Report

      • Avatar Michael Cain in reply to Michael Cain
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        says:

        Can a company outsource that? Like by way of mutual funds with stipulations?

        Absent some really incredible restrictions on what you hold, I don’t see how. Suppose you own a block of AAPL shares. Apple has $40B in cash on the books. But it’s not really cash, it’s highly-liquid financial assets, with a certain amount of turnover. What those assets are isn’t public information outside of a few special cases. Does Apple hold bonds issued by Teva Pharmaceutical Industries, which owns Barr Pharmaceuticals, which owns Duramed Pharmaceuticals, which makes IUDs? Did Apple hold them yesterday? Will Apple hold them tomorrow? How indirect does the investment have to be before it’s okay?Report

      • Avatar James Hanley in reply to Michael Cain
        Ignored
        says:

        @kazzy
        they took a case to the Supreme Court to deny female employees access to vital medication,

        No, they did not. They took a case to the Court to avoid paying for that access, not to try to stop the female employees from getting access in any other way.Report

      • Avatar Kazzy in reply to Michael Cain
        Ignored
        says:

        @james-hanley

        That’s fair. And let me stop us right here. Because I think you and I agree on this and related issues far more than our few interactions here might indicate.

        I really didn’t like the ACA. It was a highly imperfect solution to a very real problem. And what I did like about it were the fairly non-controversial aspects, the stuff most people aren’t even aware of because it doesn’t feed into the typical RvD flame war.

        I struggle with the individual mandate. I struggle with the employer mandate. I really struggle with the further entrenchment of the coupling of employment and insurance. HOWEVER, as it stands now, employment and insurance remain coupled. And, so far as I understand it, this benefits employers and the insurance companies far more than it benefits individuals. Hobby Lobby benefits from the way in which the government involves itself with health insurance, primarily by being able to offer it as compensation without paying taxes on it the way they would have to pay payroll taxes on straight wages. I don’t think it unfair of the government to say, “In order to receive this benefit, we expect you to follow certain rules.” Now, you might disagree with that very premise and I wouldn’t call you a monster for doing so. My hunch is that you might not disagree inherently with it but on what rules it is appropriate for the government to impose. At which point I would agree that we’d want to very carefully consider which rules are and are not appropriate.

        To me, the contraception mandate is not an inappropriate rule.

        What really bothers me is folks saying, “Keep the government out of our consciences!” while simultaneously waiving the government in the back door to prop them up financially. This is actually where the employer mandate bites the government in the ass. They can’t tell Hobby Lobby to just not offer insurance as a form of compensation. Yet another reason why I don’t like the employer mandate.

        Ultimately, I wouldn’t object to extending the tax-exempt waiver to companies like Hobby Lobby. What is most importance to me is ensuring as widespread access to health care for as many people as possible. And this includes women and contraception. Also, the waiver is a (very small) step towards decoupling employment and insurance which I would really like to see.

        Let Hobby Lobby run its business in line with whatever principles it values. Let its employees take their wages and buy insurance on a truly open market (or, better yet, choose between public and private offerings).Report

  25. Avatar Patrick
    Ignored
    says:

    Persons have rights. If there is a rights conflict, we have to adjudicate that accordingly.

    Corporations have legally granted privileges and legally granted obligations, they don’t have rights. There may be a mapping of some rights to legally granted privileges, but that exists not because the corporation has rights, but because the corporation has been given a legally granted privilege that is similar to a natural person’s rights.

    The issue I have with this whole affair is that it puts another nail in the coffin that they started building with Citizen’s United; it’s evident from the last decade that corporate law needs some clarification, because the existing structure of corporate law obviously is insufficient.

    So.

    My understanding of for-profit corporations is that the corporate officers have a fiduciary obligation to the stockholders, yes? If the corporate entity is claiming some sort of religious feeling about something that may impact profitability, there is a clear massive conflict. If I bought Hobby Lobby stock, and suddenly Hobby Lobby had a coming to Jesus moment where they decided that they needed to give all that they owned to the poor to get through the eye of the needle, I think we’d agree that I’d have grounds to sue the shit out of them if they just gave away all the company assets, yes? Indeed, I’d be able to preemptively block such a move?

    The counterclaim appears that, well, this is a closely held corporation so that’s not an issue, but that’s hardly true, because we have no idea what the dispensation of corporate stock will look like in 20 years. I mean, if one of the family stockholders marries a secular Jew and dies, and the secular Jew inherits the stock, what the hell happens now?

    We clearly need to change the way we deal with persons vs. organizational constructs, and it’s pretty plain to me that regarding-all-organizational-constructs-as-corporations is a very, very limiting way of doing this.Report

    • Avatar James Hanley in reply to Patrick
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      says:

      Corporations do have legal rights, Patrick. The government cannot simply ignore due process of the law if it suspects a corporation of wrongdoing.

      Or let me put it this way. The 5th Amendment says “nor shall private property be taken for public use, without just compensation” It doesn’t specify property owned by an individual, just private property, which would include all property owned by a corporation.Report

      • Avatar Burt Likko in reply to James Hanley
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        says:

        In my grand intellectual framework, the government has power. The limits of that power are described by what we call rights. Beyond that frontier, the government lacks power.

        The government lacks power to seize property without incurring liability to pay FMV for it. So it doesn’t matter who or what holds title to the property. The government can only exercise the power to condemn it if it simultaneously accepts liability to pay.

        Similarly, the government lacks power to fine a corporation as it pleases; it can only take life, liberty, or property after affording due process. Doesn’t matter to whom the process is due, including if it’s due to a corporation.Report

      • Avatar Patrick in reply to James Hanley
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        says:

        What Burt Said.Report

      • Avatar James Hanley in reply to James Hanley
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        says:

        @patrick

        I think Burt just said corporations have rights.Report

      • Avatar Burt Likko in reply to James Hanley
        Ignored
        says:

        I said the government lacks power to do certain things. Even to corporations.Report

      • Avatar LWA in reply to James Hanley
        Ignored
        says:

        Could the government simply revoke the legal recognition of the corporate form of business?

        In Tim Kowal’s reply to my question about where corporation’s rights come from, it seems like it boils down to convenience- we recognize corporations as separate entities only because it makes the placement of liability easy and more fair. They don’t have some inherent right to exist, and certainly not without strings and rules and boundaries.Report

      • Avatar James Hanley in reply to James Hanley
        Ignored
        says:

        Burt, you also said the limit is what we call rights.Report

      • Avatar James Hanley in reply to James Hanley
        Ignored
        says:

        @lwa

        Yes. There are any number of probably unwise policies the Constitution would allow the U.S. to enact, and that’s one of them.Report

      • Avatar LWA in reply to James Hanley
        Ignored
        says:

        I agree, actually that it would be unwise- the corporate form of business is convenient and does good things.
        For us. For the people who created and sustain this legal fiction, it serves a purpose.

        This is yet again why I think its a mistake for political discussions- liberal, conservative, or libertarian- to try and reduce everything to “Is This A Right, or not?”Report

      • Avatar Burt Likko in reply to James Hanley
        Ignored
        says:

        I suppose that’s the vestige of natural law left in me — I shrink fromthe idea that corporations have them, although logically that is where the road goes.Report

      • Avatar Patrick in reply to James Hanley
        Ignored
        says:

        So here’s the difference, in more detail.

        The framework of the US works like this: natural persons (people) have rights, which are inherent and can’t be taken away. Some of them are enumerated, but they don’t need to be (this is where the 10th amendment comes into play).

        The *government* has power. The power of the government is limited to prevent it from infringing upon the rights of the citizenry. The government doesn’t have rights.

        The limitations that we put on government power can be there regardless of whether or not the limitation is there to protect a right or not. Indeed, since the rights aren’t enumerated, that would be problematic.

        The legal fiction of the corporation has a legal requirement to turn its assets over to the shareholders, who are natural persons. This is where fiduciary responsibility comes in. Since the shareholders are natural persons, the government coming in and taking the property without due process would be taking the property away from the shareholders, since the property is theirs. That’s why the government can’t take the property without due process, because the property right is held by natural persons. Fiduciary responsibility is fairly well understood.

        If you incorporated with explicitly religiously-encoded bylaws, then the corporation may have a leg to stand on, but absent that, you can’t really claim a religious belief because the corporation is *not* the shareholders, and while I can pass the *property rights through*, because I know what ownership claims each shareholder has, I can’t pass the right of religious belief through.

        To illustrate the problem.

        Two shareholders have or develop differing ideas of religious obligations. Let’s assume for the sake of argument that the company did not incorporate with religiously-inspired bylaws.

        I sue to block the giving away of half of the profit because of fiduciary responsibility to shareholders, which is an explicit obligation of a corporation.

        How does a court rule against me without infringing upon my religious freedom rights? They cannot.

        How can a court rule against the CEO without infringing upon his religious freedom rights? They cannot.

        (g’head, say that our religious beliefs ought to be weighed by our fiscal investment in the company, then we can get to the real fun)

        Ergo, the corporation can’t have religious beliefs, because the shareholders can believe different things, and there is no way for the government, as a disinterested third party, to adjudicate that if it comes to a conflict.

        Or, put another way… regardless of whether or not the corporation “could”, in theory, have a religious belief, there’s no way for the government to get involved because there’s no analogous metric of weight to the shareholder stock’s implication of property rights entailment.

        (edited to add)

        Absent a particular article in the documents of incorporation, of course.

        So go ahead, incorporate with those articles written into your incorporation.

        I think this might have some consequences you might find problematic, if you’re not a true believer.Report

      • Avatar James Hanley in reply to James Hanley
        Ignored
        says:

        Patrick,

        That’s a much better argument. But here’s where I think it doesn’t get you where you want to go. In your example, fiduciary duty might win out because it’s a general rule that does not in itself religiously discriminate and because it resolves a conflict on the board. Contra your claim that a ruling in your favor violates the other shareholder’s religiius freedom, giving away half the corp’s profits is not a part of the belief system of any established church, and the court does tend to look at the beliefs of established churches, even off-beat ones like santeria churches, rather than purely individualistic claims. And the court would be applying the rule only because of the shareholder conflict.

        In this case, the claim is based on established church doctrine, and there is no shareholder conflict (that I know of, or that was made a part of the case). Could the ruling lead to your case in the future? Well, that kind of case could happen anyway, and this ruling just gives the majority of the shareholders an argument in their arsenal. But it’s an argument I think the courts could easily set aside by saying the fiduciary duty rule trumps when there’s a conflict because it doesn’t really violate anyone’s religious beliefs, and the corp can still give away half the rest of the profits (all that isn’t your share).

        Is it a bit messy? Perhaps. But that’s not unusual for Supreme Court rulings, because in general the easy cases without such potentially troubling implications are ones they don’t bother with (except, as with the cell phone search case, it’s constitutionally important and they need to make a definitive statement).Report

      • Avatar Gabriel Conroy in reply to James Hanley
        Ignored
        says:

        @james-hanley

        ” (except, as with the cell phone search case, it’s constitutionally important and they need to make a definitive statement)”

        Someone on the interwebs (I forget where) suggested that that that may have been so decisive because each justice could empathize the troubles that would ensue if their own phone information were tracked, while they might not have such a first order experience with being stopped and frisked by police, for example.Report

      • Avatar Patrick in reply to James Hanley
        Ignored
        says:

        @james-hanley

        The argument isn’t against the specifics of the Hobby Lobby case, the argument is against the idea that religious beliefs (at least, those not made explicit) can’t be passed through in the way the property rights can be.

        And that, of course, is because property can be entailed by pretty easily measured metrics. Property has monetary value, we can assign X dollars to N shares of stock.

        Given a conflict between property rights entailment person A and property rights entailment person B, we have a pretty long standing method for resolving those disputes, which is messy, but it works.

        But how do you entail the religious beliefs measurement?

        Let’s say there are five members of the board, each of whom has a religious belief system. They may all be the same right now at this moment in time. They might have remarkable unity. They might not in six months. How can that be adjudicated?

        Let me put it another way. The actual purpose of stock is to determine the relatively ownership of the assets of the firm, right? That’s why we require companies to issue stock.

        If a group of people wanted to incorporate without stock, we wouldn’t let them do it. They have to issue some, that’s the dealio, yo.

        If a group of people wanted to incorporate with a religious inclination, isn’t it in the best interests of the body politic to insist that they both state what those inclinations are, and have relevant rules to resolve conflicts, just to keep their butts out of the court system and generate work for the rest of us when they inevitably decide that, well, maybe some of us don’t believe that any more?

        This is why we have default inheritance rules, yes? Absent a will, all of that probate stuff has to occur and whatnot. And that’s a mess… but it’s a mess that we basically invented common law to solve, because the king doesn’t own it all any more.

        I really don’t think it’s even too much to ask… that a corporation that wants to pursue something other than profit as a primary (or even secondary or tertiary goal) codify that. If for NO other reason, because religion is a protected class…Report

      • Avatar Dave in reply to James Hanley
        Ignored
        says:

        @patrick

        The legal fiction of the corporation has a legal requirement to turn its assets over to the shareholders, who are natural persons.

        Two quick points (and I apologize for being brief because this does deserve a comment rescue).

        1. I don’t understand what legal requirement you are talking about. The only legal requirement I’m aware of is in the event of a liquidation, the corporation will return CASH back to the shareholders in the event any cash is left over after the other creditors have had their claims satisfied.

        2. Natural persons aren’t the only shareholders. Stocks, bonds, CMBS, munis, etc. are also institutionally held by non-natural persons. If CALPers owns $500 billion in total assets, how does anyone figure out how this gets passed through to the people that benefit from those assets? It can’t be done.

        The same goes for other entities – hedge funds, private equity, etc.Report

  26. Avatar Michael Drew
    Ignored
    says:

    Others will […] contemplate the importance of electing a Democrat to the White House in 2016 2000 and/or 2004.

    FTFY.Report

  27. Avatar DavidTC
    Ignored
    says:

    Okay, @burt-likko, or anyone else that’s a lawyer, will someone please address *my* point?

    Specifically asserting something is an exercise of religion and then demanding employees participate in it is…well, it’s not illegal per se, but the corporation responding to the employee doing or not doing that is.

    Remember, Hobby Lobby has stated under oath that refusal to pay for contraceptives is an exercise of religion. They can’t turn around and argue otherwise. If it’s an exercise of religion for them, it can obviously be an exercise of religion for their employees.

    And if issuing insurance with that exception is an ‘exercise of religion’, surely accepting such insurance also is. (Hell, the employee has *more* interaction with the insurance company than the corporation. The insurance is even *in their name*.)

    ‘Oh, don’t worry,’ Hobby Lobby can say, ‘if they object, they can just skip getting insurance…wait, paying people less compensation due to their religious belief is illegal? Well, we’ll only hire people that have the same religious beliefs as us-crap, wait, that’s illegal *also*?’

    The Court has issued an exception that no company with actual employees can follow without blatantly opening themselves up to lawsuits. Hobby Lobby has specifically, under oath, turned one of their business practices into a religious belief. A business practice (employee compensation) that every employee participates in. They are totally screwed if any employee objects to participating in this exercise of religion. Or any potential hire.

    It’s like a corporation having a mandatory explicitly-Christian Christmas party that, if you don’t attend, you don’t get a year-end bonus. It’s *technically* legal for that to happen, if no one ever sues, but, wow, is that a religious discrimination lawsuit just waiting to happen or what?

    Hobby Lobby, as a for-profit, legally cannot discriminate based on religious belief. Hobby Lobby, under oath, has stated that one of their business practices that all employees participate in is an exercise of religion. Hobby Lobby has very carefully positioned themselves exactly between a rock and hard place.

    This really seems to be the elephant in the room everyone’s ignoring. Someone please explain where my argument is actually incorrect.Report

    • Avatar Burt Likko in reply to DavidTC
      Ignored
      says:

      How is this Different from Hobby lobby being closed on Sundays? The failure to provide contraceptive coverage in their insurance plan is as much a part of what you label a “religious exercise” as being closed on Sundays.

      The problem here is your major premise: that the business practice described is, itself, a religious exercise. It is not. To my knowledge hobby lobby never said under penalty of perjury or otherwise that failing to provide contraceptive coverage is, itself, a religious exercise. What it said was that providing that coverage would be incongruent with its religious beliefs. There is a distinction between a religious belief and a religious exercise.

      Hobby lobby does not require that its employees refrain from using contraception. Hobby lobby says that it chooses not to pay for its employees contraception. Similarly, Hobby lobby closes on Sundays, and it may very well hope that employees use the day off to go to church, but it does not require that its employees go to church on Sundays. Indeed, it’s a good bet that many of hobby lobby’s employees do not go to church on Sundays, and suffer no negative employment effects because of this.

      So I think you’re making a mistake, in conflating hobby lobby complaining about a law that requires it to violate its religious beliefs, with an affirmative religious exercise. The analogy is to a kosher deli being told that it must offer pork products for sale. Selling roast beef is not a religious exercise for the Kosher deli owner. “Not selling ham” is also not a religious exercise, it is simply a business practice that is congruent with the owners beliefs. But selling pork salami would be incongruent with the deli owners religious beliefs, and a law that compelled him to sell the pork-based food would be analogous to the contraception mandate that hobby lobby complained about in this case.Report

      • Avatar DavidTC in reply to Burt Likko
        Ignored
        says:

        To my knowledge hobby lobby never said under penalty of perjury or otherwise that failing to provide contraceptive coverage is, itself, a religious exercise. What it said was that providing that coverage would be incongruent with its religious beliefs. There is a distinction between a religious belief and a religious exercise.

        The relevant text of the RFRA: Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability

        Someone suing the government under the RFRA means, by definition, that that person assert that the government has burdened their exercise of religion. The word ‘belief’ isn’t even in the important part of the act. The RFRA concerns itself solely with ‘exercise of religion’.

        http://www.prop1.org/rainbow/rfra.htmReport

    • Avatar Jim Heffman in reply to DavidTC
      Ignored
      says:

      “Specifically asserting something is an exercise of religion and then demanding employees participate in it is…”

      …like your boss ordering you to sleep with him, which has joined “move to Somalia” in the list of arguments which boil down to “go away libertarian jerk we don’t wanna talk to you”

      “Hobby Lobby, under oath, has stated that one of their business practices that all employees participate in is an exercise of religion.”

      This is prima facie false, unless you believe refusal to pay for an activity constitutes banning that activity.Report

      • Avatar greginak in reply to Jim Heffman
        Ignored
        says:

        @jim-heffman “move to somalia” has just moved into first place ahead of “think of the children” as things said far more by libertarians/conservatives far more than liberals. To be sure both statements are often stupid when said by liberals, so maybe libertarians/conservatives should wait until they are said then point out the mistakes.

        The “boss makes you sleep with him” likely comes from a long contention thread on Crooked Timber where some libertarians wouldn’t say it was wrong to be forced to sleep with a boss to keep a job.Report

      • Avatar Jaybird in reply to Jim Heffman
        Ignored
        says:

        The “boss makes you sleep with him” likely comes from a long contention thread on Crooked Timber where some libertarians wouldn’t say it was wrong to be forced to sleep with a boss to keep a job.

        Not exactly. It came from Liberals who mocked Libertarians for theoretically not being against this sort of thing because contracts.

        The thread finished with Liberals saying that Libertarians should be re-educated.Report

      • Avatar greginak in reply to Jim Heffman
        Ignored
        says:

        “reeducated” ummm yeah, with camps and everything….sure right.
        This may be hard to accept but there are numskulls of every possible belief and ideology. Remember in one of the many Repub debates when asking about to do about people without insurance some douche canoe yelled out “let em’ die.” Really most Repub’s aren’t actually for that. And reliance on tired clichés is not a sign of good thought.Report

      • Avatar Burt Likko in reply to Jim Heffman
        Ignored
        says:

        Snore.

        Wake me up when we’re done with “Libertarians are all like .. !” “Oh, yeah, well, liberals are all like … !” “No way, conservatives are all like …!” I’ve heard it before.Report

      • Avatar DavidTC in reply to Jim Heffman
        Ignored
        says:

        @jim-heffman

        This is prima facie> false, unless you believe refusal to pay for an activity constitutes banning that activity.

        I have never seen a comment so completely unrelated to what I said. My comment said nothing about banning anything.

        Hobby Lobby sued under the RFRA, which requires them stating under oath that the government is interfering with an exercise of religion. They asserted that lack of paying for contraceptives is an exercise of religion. That was the *entire basis* of the lawsuit they just won.

        You follow that?

        Because a lot of people here seem to be very confused about the RFRA. It says nothing about belief. It’s entirely about a law stopping an exercise of religion, and suing under means what you are doing is, as claimed by you, an exercise of religion.

        Now, when churches give out communion, not only is giving it out an exercise of religion, but so is receiving it. The government could no more ban a person from receiving communion than they could ban a church from giving it out.

        Do you follow that?

        Hobby Lobby just argued that not giving something out is an exercise of religion. It sounds odd, but it’s is a pretty reasonable argument…a church *not* giving communion because that person is X, is clearly a exercise of religion. A church can’t be ordered to provide communion. (And this was, incidentally, just confirmed in this very ruling. This is something Hobby Lobby just swore under oath was true.)

        Do you follow that?

        Now, if not giving something out is an exercise of religion, than not receiving it is also an exercise of religion. Someone going to church and not being handed communion is not only an exercise of religion for the church, but is also one for the person refused communion. (Of course, if those two exercises of religion collide, if the person wishes to do one thing and the church another, private property rights win the day. But please note that churches have the right to discriminate on the basis of religion…for-profit corporations do not.)

        Exercises of religion are pretty encompassing. The same entity can’t claim something is an exercise of religion when they do it, but not an exercise of religion for the other people they included in it.

        Hobby Lobby, by not giving employees contraceptive coverage is, by Hobby Lobby’s own words under oath, asking them to participate in an exercise of religion. (And, of course, employee compensation is a part of a corporation that interacts with every single person.) This is, as I’ve said, not technically illegal, but is pretty obvious lawsuit-bait if anyone has a problem with it.Report

      • Avatar Michael M. in reply to Jim Heffman
        Ignored
        says:

        @davidtc I don’t think that’s the way it works. If you work for an employer who asks you to work on Saturday and Saturday is your Sabbath, you can ask that your employer make a reasonable accommodation so that you don’t have to work on Saturday. If the employer can make that accommodation, it is required to. If it can’t (if the nature of the job is such that Saturday work is necessary), then you have no case. In both scenarios, you are participating in an exercise of religion, and you are asking your employer to accommodate your exercise of religion. Your employer doesn’t necessarily have to do that, if it is not reasonable for it to do so.

        If you work for an employer that will not pay you to work on Saturday because Saturday is the employer’s Sabbath, you have no case at all to insist that your employer pay you to work on Saturday. There is no religious belief that demands of its followers that they must work for pay on Saturday. Your employer is participating in an exercise of religion and is asking you to accommodate its religious practice. Your options are: 1) do some work on Saturday without pay, probably from home, and probably without your employer’s knowledge; 2) never work on Saturday; 3) find another job. You cannot ask your employer to violate its religious practice simply because you want to work on Saturday.

        What this ruling, I think, is saying is that not paying for certain forms of contraception for employees is a valid exercise of religion for Hobby Lobby. (That’s just one of the problems I have with the ruling.) As an employee, you have similar options that the employee above does: 1) pay for a particular form of contraception yourself; 2) don’t use any of the contraception Hobby Lobby won’t pay for; 3) find another job. There is no religious practice that demands of its followers that they use a particular form of contraception, so you have no case for asking Hobby Lobby to accommodate your exercise of religion.

        I think the lawsuits you’re positing would be thrown out very quickly. Religious non-discrimination works both ways — the employer can’t discriminate, and the employee can’t insist the employer not ask it to participate in an exercise of religion by paying her to do something that violates her employer’s exercise of religion. (She can, however, refuse to do something her employer is not paying her for, like going to church on Sunday.)Report

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

        “Hobby Lobby, by not giving employees contraceptive coverage is, by Hobby Lobby’s own words under oath, asking them to participate in an exercise of religion.”

        This is only true if “will not pay for” is equivalent to “prevent from doing”. Like I said.Report

      • Avatar DavidTC in reply to Jim Heffman
        Ignored
        says:

        If you work for an employer who asks you to work on Saturday and Saturday is your Sabbath, you can ask that your employer make a reasonable accommodation so that you don’t have to work on Saturday. If the employer can make that accommodation, it is required to.

        People working at a very small business can, in fact, be required to work Saturday. ‘Reasonable accommodations’ is stuff like giving people days off they want, it doesn’t extend to hiring more people. If a business only has one employee, or even three employees but one of them just called in sick and the other just finished an eight hour shift so would get overtime, yes, the boss can call in the remaining Jewish one.

        And, as we live in such a world, I fail to see how it’s this horrible hardship for a business owner, working at an even smaller business and who has no other employees, to have to open his store on Saturday.

        And like I said, the business owner can actually *hire* more employees if they find it horrifically against their religion, whereas employees generally cannot ‘sublet’ their job to hire someone else to work their Saturday shift. So it’s actually much *less* of a religious hardship for the employer.

        Not to mention that laws ‘requiring businesses to open on Saturday’ are basically non-existent, whereas Jewish workers ordered to work on Saturday must, like I said, number in the hundreds of thousands. (I have no idea of how many of those are observant Jews that actually believe they shouldn’t be working on Saturday, though.)

        It’s actually a pretty interesting, sociologically speaking, how people seemed to have been brainwashed into seeing a hypothetical requirement business owners to do anything as a horrible infringement of rights, but the owners can, of course, do exactly the same thing to workers, all the time, and it literally doesn’t register.

        Now, of course, if a location passed a law targeting such a business for religious reasons, they obviously should sue, and they should win. I’m talking about a law serving a rational government purpose demanding stores open on Saturday. Like, I dunno, it’s a tourist town and they require all businesses to be open at specific times because erratically closed stores hurt the tourist trade, and it just so happens that one of those times is Saturday from 10 to 6.Report

      • Avatar DavidTC in reply to Jim Heffman
        Ignored
        says:

        @jim-heffman
        This is only true if “will not pay for” is equivalent to “prevent from doing”. Like I said.

        Repeating things that don’t make sense doesn’t make them make sense. The issue has nothing to do with whether or not employees are prohibited from anything. Hobby Lobby argued, in court, that the act of not paying for something is, literally, an exercise of religion. If the act of not getting paid for something is an exercise of religion, the act of not *receiving* that thing is also an exercise of religion.

        All employees are ordered to participate in the act of not receiving that thing. Not ‘All employees are ordered to not receive that thing’. They can, presumably, receive that thing at other times. But they’ve been ordered to participate in the *specific act that Hobby Lobby says is a religion exercise*.

        Hobby Lobby can order employees to drink grape juice. They can’t assert that drinking grape juice is a religious exercise and then order employees to drink grape juice.

        Hobby Lobby can forbid ham on their premises. They can’t assert that not eating ham is a religious exercise and thus they forbid ham on their premises.

        Hobby Lobby can withhold contraceptive coverage from their employee compensation, and order employees to accept that as compensation.(1) They can’t assert that withholding contraceptive coverage from their employee is an exercise of religion, and then order employees to accept that as compensation.

        (And please note that when I say they can’t do things, they actually *can*, legally. But if any employee objects, and they don’t stop that, or punish that employee for not going on with it, they’ve basically already lost the religious discrimination lawsuit.)

        Do people not follow this because they literally can’t wrap their mind about the fact that Hobby Lobby stood in court and say ‘withholding compensation is literally an exercise of religion’? Yes, I agree that’s completely insane, but that’s *what they said*, and the court agreed with them.

        SO WE HAVE TO TREAT IT AS AN EXERCISE OF RELIGION, and follow the consequences to the logical conclusion. If not paying for a specific kind of insurance is (insanely) an exercise of religion, it’s one that Hobby Lobby is making all employees participate in, by handing them a paycheck without that specific kind of insurance.

        1) And pay fines, because that specific example happens to have fines under employment law, but whatever.Report

      • Avatar Jaybird in reply to Jim Heffman
        Ignored
        says:

        I don’t think that forbidding ham is the right analogy. It’d be like asking the company to provide lunch, they said “we will provide 16 different lunch options” and someone saying “we want you to provide ham as well” and they pull the whole “we have food taboos” crap.

        Personally, I find MMJ to be a better analogy than food, anyway.

        “Hey, Hobby Lobby! We want you to provide MMJ!”
        “Um, no. We have issues of conscience about providing marijuana to people. If they want to smoke marijuana, they should be responsible for getting it. We won’t provide it.”

        In this case, it seems fairly obvious (to me, anyway) that the failure to provide a thing is different from the prohibition of a thing.

        (For the record: when I stop looking at this from the angle of “rights” and start looking at it from the angle of “what’s best for society”, I do come to the conclusion that society would be better off paying for the contraception (and, yes, abortions) of unwanted children than for the costs that these unwanted children will eventually start causing (and how much more among those who cannot afford the pills in question than those who can afford them).)Report

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

        “All employees are ordered to participate in the act of not receiving that thing. ”

        It is worth remembering, at this point, that the Supreme Court considered the “not receiving a thing is an act” line of reasoning and rejected it in NFIB v. Sebelius. My hair is a bird, your argument is invalid.Report

      • Avatar DavidTC in reply to Jim Heffman
        Ignored
        says:

        @jim-heffman
        It is worth remembering, at this point, that the Supreme Court considered the “not receiving a thing is an act” line of reasoning and rejected it in NFIB v. Sebelius.

        Uh, what? NFIB v. Sebelius didn’t have anything to do with exercise of religion, and hence it’s very unlikely they said anything about what act could and couldn’t be considered an exercise of religion.

        Are you trying to say they said that that ‘not receiving things’ is not an act at all? Because, uh, that has pretty goofy implications for equal protection laws. I.e., people who didn’t get a ballot to vote have no standing, because ‘getting a ballot to vote with’ is not, legally an ‘act’.

        I have no idea what the heck you’re talking about.Report

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

        “Are you trying to say they said that that ‘not receiving things’ is not an act at all? ”

        Yes.

        “that has pretty goofy implications for equal protection laws.”

        By your reasoning, black people who don’t move into nice houses are being racist against themselves.Report

  28. Avatar zic
    Ignored
    says:

    Well, all I can say is that if my FB feed is any indication, the ladies are peeved. Very peeved.Report

  29. Avatar Shelley
    Ignored
    says:

    With this Supreme Court, there’s just no hope. And how can we ever get anybody on there who’s not a rabid conservative to replace the current rabid conservatives?

    There’s just no hope. I wonder what happened in other periods in history when the SC was hopeless. For generations.Report

  30. Avatar zic
    Ignored
    says:

    So how far does this go before corporate-belief infringes on individual beliefs of employees?

    I’m also sure there are calls for boycotts, but what I’m seeing on FB and the crafty places I haunt is, “I’m not shopping there anymore.” It’s a competitive market; and HL may have seriously dinged their predominately female customer base badly.Report

  31. Avatar Patrick
    Ignored
    says:

    @james-hanley

    And, to quote you, bam!, you lose all rights to not have the government make you operate your business in a way that conflicts with your most deeply held religious beliefs.

    I’m not following why some people don’t have any problem with that.

    Four reasons.

    First, when discussing the HL case earlier, Mark and… Tim? Can’t remember… both said something to the effect that the deeply held religious belief bit is basically asserted by the company and left unchallenged, and that this is the norm.

    That’s not the way it works for private citizens, you bet. Pops was a C.O. during ‘Nam, and that was neither a painless process, nor an easy one to get through, and he still had to serve, just not in the capacity of shooting at people.

    I find that extremely problematic. One might argue that it ought to be that way for both citizens and corporations, but either way, we should have one yardstick, or if we’re going to weigh it for some reason, it should be a hell of a lot easier for a private citizen to claim a religious belief than an aggregate of any sort, for the simple reason that she/he is an individual.

    Second, I’m not adverse to a company having some sort of entrenched religious motivations, I’m adverse to the company being able to change them on a whim, or change them when the regulatory state makes that inconvenient. This seems to me to violate a whole slew of implied obligations (at least in the for-profit sector). I’m not as obsessed with contracts as the more libertarianish members of the blog but it seems to me that if you’re going to operate a corporation on principles other than fiduciary responsibility, that needs to be encoded somehow so that your employees know who they work *for* and your contractors and vendors know who they are working *with*.

    Third, I find it vanishingly improbable that anybody that actually has strongly held religious beliefs and runs a for-profit company will be consistent about operating those two principles conjoined. When the strongly held religious beliefs are convenient, they’ll be upheld. When those strongly held religious beliefs aren’t, they suddenly won’t be strong. That “strongly held” bit seems very convenient. Like I said, let them encode those beliefs such that they can be challenged, I’m okay with it.

    Lastly, you can have a strongly held belief that you ought not to serve the unclean. You can have a strongly held belief that you ought not to serve the heathen, or the heretic. We already tell you to go get stuffed on that score, and I’m totally okay with saying that’s fine with me, by and large (there might be operational issues here and there, but conceptually I don’t have a problem with this), because we’ve agreed that in the public sphere, there is a bar to entry that you can’t discriminate on that basis. To be honest, I wouldn’t mind granting waivers in some corporate forms for this sort of thing… but again, it has to be explicitly claimed, and the corporate form would by and large not be as privileged as one that serves the community without those biases. Basically, if you serve everybody equally, then you get to be an A corp, and if you don’t, you have to be a Q corp or whatever.Report

    • Avatar zic in reply to Patrick
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      says:

      +1 Patrick.

      (And for the record: HL’s insurance covered contraception, and they never gave it a thought until approached by a legal-fund to file this case. HL’s pension funds remain invested in the same companies that make the contraception they object to. Convenience and political motivation seem obvious; the belief’s the claim to require protecting here are obviously not enshrined.)Report

    • Avatar DavidTC in reply to Patrick
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      says:

      @james-hanley
      Third, I find it vanishingly improbable that anybody that actually has strongly held religious beliefs and runs a for-profit company will be consistent about operating those two principles conjoined. When the strongly held religious beliefs are convenient, they’ll be upheld. When those strongly held religious beliefs aren’t, they suddenly won’t be strong. That “strongly held” bit seems very convenient. Like I said, let them encode those beliefs such that they can be challenged, I’m okay with it.

      That’s why it’s much more reasonable to demand that a corporation either be operated for religious purposes, or be operated for profit purposes. Corporations get one purpose.

      Which, uh, is already how the law works. They can form a for-profit corporation, or non-profit religious corporation. 😉 (And we even have a third option of non-profit non-religious, an organization aimed at goals at that are not, technically, religious in nature, but still are not profit. And even more obscure corporate forms like unions and whatnot.)

      Corporations get a purpose, a single purpose, because we regulate corporations with different purposes differently.

      If you want a corporation with two purposes, form two corporations. Nothing is stopping Hobby Lobby from being a for-profit corporation fully owned by a church, where all profits go to some religious purpose. Or stopping the current owners from donating all their profits to charity.

      And, getting a touch off topic, I think this also is a reasonable solution to the ‘corporate political donations’ also. I’m all in favor of political organizations…and we already have them, and they’re called PACs.

      And, actually, this ‘dual corporation approach is how legitimate ‘dual purpose’ organizations used to work, like the Sierra club or political unions or for-profit companies, all organizations with a specific goal, which also want to do lobbying. They had the original corporation (a non-profit or a union or a for-profit) and there was a PAC right next to them.

      The Hobby Lobby people want a religious corporation, they should feel free to start a church, and put donation bins in their store.

      Of course, this wouldn’t work here, because the problem here is that the Hobby Lobby owners want some religious thing to affect the running of a for profit company. And it’s exactly the same problem with the political donation nonsense…people running a for-profit corporation want to do something other than make a profit with it.

      No. That’s what for-profit corporations do. You cannot pick and choose what part of what corporation structure you’re in. Pick a goal, and pick the corporate structure that matches that goal. Make more than one corporation if need be.Report

      • Avatar DavidTC in reply to DavidTC
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        says:

        Erm, that was a response to @patrick , obviously, not James.Report

      • Avatar Patrick in reply to DavidTC
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        says:

        Intellectually, I’m very attracted to the framework behind this argument, David, but it does have a limiting effect that I think kills it…

        It supposes that religion and religious belief systems that cannot be decoupled entirely from social practice are lesser, which is an assumption about religious belief that I don’t think really holds. It also opens up the problem Mark talked about earlier, which is a serious problem:

        “Replace “large -but closely held – business Hobby Lobby” with “small Kosher deli,” and replace “federal government’s contraception mandate” with “anti-Semitic town council.” If that town council then proceeded to get rid of Jewish businesses by, say, requiring that all retail businesses and restaurants be open on Saturdays, the practical impact of that would be not only that the ordinance was upheld, but that there would literally be no one with standing to challenge the ordinance unless the business owner took the risk of unincorporating.”

        I think that’s a fair counterpoint.

        If you want to run your own business by some religious principles, and you want coverage for this, I can see the argument that there ought to be a fourth category of corporate entity. Indeed, I don’t think it’s even particularly difficult to do, and I think that the fallout of this might actually be a big deal.

        I mean, imagine a Roman Catholic who says he’s going to run his business “by the principles and standards of the Roman Catholic Church.” And then he implements a policy that one of his workers finds likely in conflict with the principles of the RCC. So the employee sues, and Exhibit A is the local bishop – who by the principles of the RCC is the ecclesiastical authority in this region – shows up and says, “This guy is not operating by the principles of the RCC”. Pretty sure that worker will win that lawsuit.

        I certainly think this makes FAR FAR more sense than SCOTUS weighing in that some corporations which may have fairly ineffable religious beliefs can pretty much just write some shit down and opt-out of part of the regulatory state, pending court review.Report

      • Avatar DavidTC in reply to DavidTC
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        says:

        If that town council then proceeded to get rid of Jewish businesses by, say, requiring that all retail businesses and restaurants be open on Saturdays, the practical impact of that would be not only that the ordinance was upheld, but that there would literally be no one with standing to challenge the ordinance unless the business owner took the risk of unincorporating.”

        I feel I must point out this idea is complete nonsense as a valid religious objection? Why?

        Because employers can already require workers to work on Saturdays.

        I’ll play the world’s smaller violin that society dares, dares, to infringe on the right of a business owner to not work on Saturday. And doesn’t care the slightest bit about the hundreds of thousands of Jews already required to work on Saturday.

        Of course, that’s not the same thing at all. The business owner can just hire someone to cover Saturday, while the workers generally can’t hire someone to cover their shift.

        Seriously, this entire concept is epically silly.

        PS I think your ‘standing’ argument is left over from somewhere else. I have no idea why the owner would not have ‘standing’ to challenge anything they want. And if a law actually is based in discrimination, of course they can challenge in it court on those grounds. That doesn’t mean they can get an exception to the law if it exist for some legitimate reason.Report

      • Avatar Mike Schilling in reply to DavidTC
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        says:

        Given such distinctions, you could argue that of course Citizens United has an absolute right to spend its money on political ads: that’s what it was chartered for, and what all of its owners and supporters intend it to do. Exxon? Not so much. If it wants to influence an election, let it start a PAC, to which any of its shareholders who want their money spent in that fashion are free to apportion their share of that year’s profits.Report

      • Avatar DavidTC in reply to DavidTC
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        says:

        @mike-schilling
        Given such distinctions, you could argue that of course Citizens United has an absolute right to spend its money on political ads: that’s what it was chartered for, and what all of its owners and supporters intend it to do. Exxon? Not so much. If it wants to influence an election, let it start a PAC, to which any of its shareholders who want their money spent in that fashion are free to apportion their share of that year’s profits.

        Erm, they have an ‘absolute right’ in the sense that is what they are supposed to be doing. They obviously have to follow whatever laws apply, including whatever limits the courts say. Likewise, in one sense, you can say Exxon has an ‘absolute right’ to earn a profit, too, but that doesn’t mean they can dump oil everywhere or sell things unfit for their purpose or break other laws.

        Citizens United has an ability to engage in politicking, within the law. Exxon has an ability (and a duty) to engage in profit-making, within the law. And it isn’t really a ‘right’, per se. Corporations, despite our insane Supreme Court, do not have rights. The people who control and operate them have rights.(1)

        The problem with Citizens United was the court erasing the boundaries of the laws about politicking, not the fact that Citizens United was politicking. It’s supposed to be politicking. That is the point of it.

        Corporations should do what they are founded to do, and only what they are founded to do, because we have different rules based exactly on those goal. You want two goals, make two corporations. Incidentally, Citizens United did exactly that. They have a 527, their political arm, and a 504(c)(3), their non-profit charity arm.

        1) And I’m not sure that people really have *any* ‘absolute rights’, if only because they have more than one, so obviously all rights have circumstances where they can run into other rights. I’m sure I can come up with some overriding situation for every single right. E.g., people do not have the right to freedom of speech while being compelled to serve on a jury.Report

      • Avatar Mad Rocket Scientist in reply to DavidTC
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        says:

        For those still struggling with the whole “shouldn’t have to pay for a life style choice” bit, think of it this way.

        Hobby Lobby would have a solid case(IMHO) if, for example, the ACA required every corporation to donate money directly to Planned Parenthood. Then I could see Hobby Lobby having a legitimate gripe.

        But they really are complaining because the money they pay their employees, in whatever form that money takes, might be used for BC, is just as ridiculous as the Joyce Foundation complaining because one of it’s employees likes to buy guns & ammo. I could see them having a bit more of a legitimate gripe if including BC caused their per employee premiums to go up (or they got a discount if they refused said coverage), but I can not imagine the inclusion of BC in any way affects the premium in any significant way.

        It’s money, it’s fungible.

        (& I still think HHS dropped the ball by trying to argue against religious freedom & corporate personhood so hard. I think that is why they lost Kennedy. They should have focused much more on either putting the ‘deeply held’ bit to lie, or just focused on compensation is fungible).Report

      • Avatar Jim Heffman in reply to DavidTC
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        says:

        “It’s money, it’s fungible.”

        Except it isn’t in this case, because the compensation is being provided specifically for contraception. It isn’t just “here’s some dollars, spend ’em on birth control if you want”. That’s probably what Hobby Lobby would have rather done, but the ACA didn’t give them that option.Report

      • Avatar Mad Rocket Scientist in reply to DavidTC
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        says:

        @jim-heffman

        For anyone not self insured, this is bogus unless you can show that refusing to cover BC significantly lowers the premiums paid (unlikely).

        For HL, because they are self-insured, this is effectively true although still irrelevant. It’s not “their” money.

        This is what comes of thinking of employer provided insurance as a benefit or an entitlement, instead of what it is, part of my compensation package. What HL is doing is, effectively, paying their employees with two checks. Check A is the take home pay, check B goes into what you could think of as forced savings plan for medical expenses (with withdrawls subject to reasonable rules & conditions set by policy & statute). HL maintains the pool of money, & it pays someone to administer it. Now HL wants to tell their employees that if they can not pay for BC out of the money from check B because it hurts their feelings.

        Is that clear? HL is not PAYING for BC out of their pocket, they are merely dispensing funds from money paid to their employees that is kept in a trust they maintain.

        This is why HHS lost the case, because they went after corporate personhood (a lost cause already, as evidenced by citizens united) & religious freedom (also a lost cause thanks to the RFRA*).

        *As an added note, this law is probably BS. I’m an agnostic. Does this law in any way protect me or atheists in the same manner it protects religious folks? I’m genuinely curious.Report

      • Avatar Jim Heffman in reply to DavidTC
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        says:

        “Now HL wants to tell their employees that if they can not pay for BC out of the money from check B because it hurts their feelings.”

        No, health insurance payments are not just “regular money earmarked for a specific purpose”. There are negotiations and arrangements involved in each particular employer’s contract with the insurer. If it were just “write a check to Aetna every month for cost-of-coverage times number-of-employees” then there’d be no benefit to the employer providing insurance and they wouldn’t bother.Report

      • Avatar Mad Rocket Scientist in reply to DavidTC
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        says:

        @jim-heffman

        It’s an analogy. The supporting concept still holds. The employer offers insurance as compensation for services rendered. Insurance is defined & regulated by statute (rightly or wrongly, but it is), so the employer has to offer insurance that meets those regulations.

        If I agree to work for a company, and in lieu of additional cash, I accept an insurance plan that is supposed to cover X, Y, & Z, but my employer is trying to avoid providing some coverage because it hurts his feelings, then I have cause to complain.

        Now in a just world, I would have no problem with HL declining to offer such coverage, because in a just world, the moment they did so, I’d get a couple hundred extra dollars every month so I could buy the stuff on my own, or buy an insurance rider to handle it. Thus the amount of agreed upon compensation remains relatively constant.Report

  32. Avatar zic
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    says:

    So the thing that’s really bothering me here is that the court went out of it’s way to specify this decision does not apply to other medical treatments — transfusions, vaccines, etc. Just to contraception.

    So as my employer, your religious rights outweigh my reproductive rights. Because religion has always been about control of the limited egg supply.Report

    • Avatar Jim Heffman in reply to zic
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      says:

      The intent is to ensure that further “religious exception” arguments actually do get argued in Court, rather than having people move for summary judgement based on this decision.Report

  33. Avatar Gabriel Conroy
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    says:

    A few thoughts in a thread that has already probably run its course:

    1. Considering @mark-thompson ‘s example of the antisemitic town council: is it possible to devise a level of scrutiny that can capture purposeful and targeted regulations against practitioners of a religion while leaving “incidental” regulations untouched? The ACA, for all its faults, isn’t a ploy by its supporters to really stick it to evangelical business owners in the same way the antisemitic town council’s Saturday closings are aimed (in Mark’s hypothetical) at Kosher delis. I realize there’s a lot unanswered here (what makes a regulation “merely” incidental? how non-incidental does a regulation have to be before we can say that it intrudes on religious exercise? if religious exercise is so fundamental, ought an intrusive regulation require an intent similar to the town council’s or could the intent come from elsewhere? how does one figure out intent or decide whether the town council is antisemitic?)

    2. I haven’t read the decision yet, but I understand it is decided based on the requirements of a federal statute, the RFRA and not 1st amendment grounds. If that’s true, then why can’t another federal statute–in this case, the ACA–override or amend or supersede the RFRA? (Of course, if the case was also decided on 1st amendment grounds, then my point is vitiated.)

    3. I understand the court rendered this decision for “closely held” corporations. I’m curious about how the court determines whether a corporation is “closely held.” I also suggest that not all closely-held corporations are the same. The Kosher deli, LLC, with one or two stores in a town is very different from Hobby Lobby, with stores all across the country. Maybe we can or ought to distinguish somehow between the two.

    One possible way to make a distinction could be based on a three-part distinction among ownership, directorship, and management. My understanding of the idea of “closely-held” corporations is that ownership and “management” of the company are mostly in the same hands. But in the case of Hobby Lobby, I find it hard to believe that on a day-to-day basis, the owners/directors manage each an every store. I imagine they have something like a general manager for each store who handles the day-to-day things. So can we distinguish between two types of “management,” the one that “directs” the corporation and the other that handles day-to-day or store-by-store business?

    I ask this question–and offer this distinction–because I think it addresses some of the disconnect a lot of the opponents of the case feel when, in their view, the “religious exercise of a corporation” is mentioned. I do admit that my three-part distinction has the failing of being less predictable (how much does management and directorship have to be separated, or how big/small does the enterprise have to be, in order for the owners to have standing or for us to reliably predict whether this is like a publicly traded for-profit?)Report

    • Avatar James Hanley in reply to Gabriel Conroy
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      says:

      Partial replies, Gabriel.

      how does one figure out intent or decide whether the town council is antisemitic?)

      Part of it has to do with the specifics of the effect of the law, and part has to do with the public record of passage of the law. Church of the Lukumi Babalu Aye v. Hialeah, FL is a good example case. It’s a santeria church that does animal sacrifice, killing chickens as part of their worship. The city passed a law saying only licensed butchers in a butcher shop could kill chickens within city limits. Who else but the church was doing it outside a butcher shop? Nobody, so it clearly seemed directed at them. Also, iirc, there was record of comments at the city council meeting indicating the concern was the church. People who have an axe to grind, particularly those who aren’t professional politicians, usually aren’t strategically clever enough to keep their mouth shut about their real motivations.

      then why can’t another federal statute–in this case, the ACA–override or amend or supersede the RFRA?

      I’m wondering that, too, so obviously it’s a brilliant question. I haven’t gotten around to reading the ruling yet, but my seat of the pants guess would be that the Court took the absence of any mention of RFRA in the ACA law as an indication that the latter wasn’t meant to supercede the former. But that’s only a guess.Report

      • Avatar DavidTC in reply to James Hanley
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        says:

        People who have an axe to grind, particularly those who aren’t professional politicians, usually aren’t strategically clever enough to keep their mouth shut about their real motivations.

        I’m not sure it’s due to ‘lack of cleverness’. Someone has to state the real motivations. If someone didn’t explain that to the voters, there’d be no reason for politicians to do it in the first place.

        Voters: ‘Huh? Why do we care about chicken slaughter laws? Why would passing that law make us vote for you?’

        Either the politicians, or someone else in the community, has to explain to the voters how the law relates to that ‘voodoo church’. (I am aware that ‘voodoo’ is not the same thing as ‘santeria’, but I’d bet money it showed up in the discussion of this law.)

        People can talk in code, of course, but only if the code exist in the first place and only if the ‘right people’, and only the right people, understand it, and if the code exists. (Which is why zealously calling out usages of code by politicians is important. Politicians should not secretly be sending messages that only some voters can understand.)Report

      • Avatar DavidTC in reply to James Hanley
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        says:

        No, ‘it’, as in the thing we’re talking about, is spelled ‘Santeria’.

        Voodoo is just how I was saying bigoted people would refer to a Santeria church in their town. (Santeria is not Vodun, Vodou, or Voodoo, or even Hoodoo, all of which are different things that I know very little about, except to know that most people use them wrong, so I check Wikipedia to make sure I know what I’m talking about.)Report

      • Avatar Gabriel Conroy in reply to James Hanley
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        says:

        @james-hanley

        Thanks for the answers. Another thought about the town council and the “animus” in discussions over whether to enact an ordinance that on its face seems neutral but has the practical effect of singling out one group of people for their beliefs: I thought the court usually (often? sometimes? only in my fevered imagination?) claims not to look at the legislative history when interpreting or deciding the constitutionality of a statute. Is that correct? If so, how can it take such statements as evidence of animus?

        Also, what if the ordinance against non-licensed killing of chickens has a strong public health reason behind it in addition to the widespread animus? What if improper killing of chickens verifiably facilitates the spread of some deadly disease that only licensed butchers are likely to know how to stop? Would the fact that the enacters of the ordinance acted out of bigotry be overridden by public health concerns?

        (I’m putting a lot of weight on “verifiably” and I’m not trying to justify the anti-chicken slaughtering rule. I’m just curious about the logistics.)Report

      • Avatar James Hanley in reply to James Hanley
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        says:

        @davidtc

        It was an ordinance passed by the city council.Report

      • Avatar James Hanley in reply to James Hanley
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        says:

        @gabriel-conroy

        No, they’ll look at legislative history often enough. But if a good public health concern was shown, it possibly could save the law. That’s where we’d get into which level of scrutiny the Court wanted to apply. If they went for rational basis review, the city would just have to show the law was reasonably related to a legitimate government interest. If they went with strict scrutiny, the city would have to show a compelling interest and that the law was narrowly tailored.Report

      • Avatar James Hanley in reply to James Hanley
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        @davidtc

        Also, I didn’t mention it, but I had in mind school board members who want to put creationis….err, intelligent design in their district’s science curriculum. There’s well established code (intelligent design, not creationism; teach the controversy, not put God back in the schools). And yet inevitably someone blows it and references religion.

        But your point about trying to persuade a large number of voters is a hood point. I’m not trying to argue against that.Report

    • Avatar DavidTC in reply to Gabriel Conroy
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      says:

      if religious exercise is so fundamental, ought an intrusive regulation require an intent similar to the town council’s or could the intent come from elsewhere? how does one figure out intent or decide whether the town council is antisemitic?)

      It’s also worth mentioning that the RFRA does not apply to city governments, or any level under Federal. So people saying ‘Well, if you try to change the law, you could have antisemitic city councils stopping Kosher delis’ are using a particularly bad example. You can already have those sort of antisemitic laws, if the RFRA was the law people were relying on to stop those. It’s only Federal law that the RFRA give an override to.

      But it’s not. People are, instead, relying on the 1st amendment as the basis for their lawsuit.

      The 1st amendment says the government (at any level, thanks to incorporation) can’t prohibit the free exercise of religion. The courts have held that this means that as long as there is some rational, non-religious reason for a law, it’s okay, even if it does affect a religious exercise. However, plenty of irrational religious and anti-religious laws have been struck down under first amendment grounds.

      The RFRA says that if a law the Federal government (and only the Federal government) interferes with the free exercise of religion, it can only do so if that law is the least restrictive way to accomplish the government’s goal, unless said law excludes itself from the RFRA. The RFRA was a stupid reaction to overly-restrictive drug laws stopping Native Americans from using peyote as a sacrament. (Better solution: Stop having idiotic drug laws.)

      It’s the RFRA that caused the court decision today. This, incidentally, is not a crazy interpretation of the law. It’s just a damn stupid law. ‘No laws apply if they interfere with what anyone says is a religion exercise and anyone can come up with a hypothetical workaround.’ Guys, you really can’t blame the court for this. Without the RFRA existing, or with an statement in the ACA saying the ACA doesn’t have to follow the RFRA, Hobby Lobby would have no basis for their suit.

      P.S. I’ve failed to see anyone address the point that many states do, in fact, require contraceptive coverage insurance already. My state of Georgia does. That means, in theory, in this state, Hobby Lobby does still have to provide contraceptive coverage, because all insurance is required to have that. Because, again, the RFRA doesn’t apply to state law. (I’m not sure if our state law requires exactly the specific forms it sued about, though.)Report

      • Avatar DavidTC in reply to DavidTC
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        I just googled my PS, wondering about that, and ran into a claim that the state law doesn’t matter, because Hobby Lobby ‘self-insures’ and only has to follow Federal insurance law. This…makes no sense to me.

        http://www.pbs.org/newshour/rundown/hobby-lobby-decision-wont-change-many-state-laws-require-contraception-coverage/

        Firstly, if they were actually the insurance company, wouldn’t someone have actually pointed this out by now? Everyone keeps talking about how the insurance company is a third party, but, uh, Hobby Lobby isn’t a third party to itself. I don’t really think it would change anything, but surely it would have presented itself as an argument!

        Secondly, these state laws about contraceptive coverage are based as civil right laws, saying that women have a right to contraceptives and failure to provide them is gender discrimination, if prescription drugs are part of the health insurance. Why on earth would that only apply to ‘health insurance companies’ instead of all companies offering health insurance? Why would that exclusion be in the law? I can see it being in the law, by accident, in a few states, but this article seems to imply that’s how *all* states do it. (‘We hereby pass a law saying that a few specific companies can’t discrimination against women in a certain way. Just those companies, though. Other companies should feel free to keep doing exactly the same thing.’)Report

      • Avatar Gabriel Conroy in reply to DavidTC
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        says:

        @davidtc
        From the decision (which I still haven’t read):

        As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work, 4 but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U.S., at 516-517 . In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id., at 533-534 . See also id., at 532 .

        [bold added by me] I’m not sure what that proves, really, but it’s something I’ve noticed.Report

      • Avatar Mad Rocket Scientist in reply to DavidTC
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        says:

        For those who don’t know:

        My understanding is that self-insured generally means that a company contracts with an insurer to administer a health plan, but the insurer does not actually pay for anything. The insurer administering the plan would handle the claims, and cut a check to the provider, but it would then directly bill the self-insured entity for the claim cost. So the company pays a set fee for the admin costs, and then pays for each claim on it’s own, rather than paying premiums to an insurer.

        HL does appear to be self-insured, which does take a bit of wind out of the health plan as compensation argument, since the company is not as significantly removed from the costs as I first assumed (since they actually are directly paying for what they object to).Report

    • Avatar Mark Thompson in reply to Gabriel Conroy
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      says:

      Gabriel:

      1. My example is only with regard to why it’s necessary to allow standing to sue, not whether the corporate plaintiff or (as I would prefer) owner plaintiffs should win. This is an absolutely essential distinction that I think is getting lost here. Standing just means that you have the right to have the court look into whether there’s a violation of a given statutory or constitutional right. It does not mean that the right has actually been violated. In other words, if we said that neither a corporate entity nor its owners – even if closely held – can have standing to assert violations of religious freedom, then no court could ever even review whether a law or regulation sought to infringe on religious liberty if that law or regulation was directed exclusively at businesses. In other words, in my view, it would be tantamount to creating a license for governmental entities to discriminate against disfavored religions as long as it couched those efforts as business regulations.

      2. This is a good question. The answer is that RFRA acts as an exception to any and all other statutes because of how it’s written. Congress can opt for it to be inapplicable to a particular law or regulation, which it wouldn’t be able to do if RFRA were a Constitutional requirement, but RFRA is, by its terms, applicable unless Congress explicitly makes it inapplicable in a given instance. There are a number of statutes like this – the most obvious such statute is the Dictionary Act, which gives a number of words (including, most relevantly, the word “person”) a particular definition across all laws unless those laws specify a separate definition.

      3. Closely held corporations actually do have a fairly clear legal definition under federal law. Here’s an FAQ description from the IRS: http://www.irs.gov/Help-&-Resources/Tools-&-FAQs/FAQs-for-Individuals/Frequently-Asked-Tax-Questions-&-Answers/Small-Business,-Self-Employed,-Other-Business/Entities/Entities-5 I get what you’re saying about the desire to distinguish between a closely held business like Hobby Lobby and a mom-and-pop store, but I don’t see how there’s any way to do so that makes sense for standing purposes: remember, the religious liberty that the court is concerned with here is ultimately the religious liberty of HL’s owners, and really there shouldn’t be any more tolerance for leaving unchallenged a hypothetical regulation aimed at infringing religious liberty just because it applies only to businesses with greater than X number of employees. Don’t get me wrong – the size of a business may play a part in evaluating whether the regulation of that business should survive a RFRA challenge, but I don’t see any reason for why business size should prevent a challenge altogether.

      That said, and as I hinted at in my opinion in April, I do think that there should be a test developed to discern when standing should and should not be permitted for an owner to claim a personal injury through a corporate entity, and I’m rather disappointed that the Court stopped short of doing so. One of the factors in any such test probably should be, IMHO, the unanimity of the owners’ beliefs.Report

      • Avatar Patrick in reply to Mark Thompson
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        says:

        I do think that there should be a test developed to discern when standing should and should not be permitted for an owner to claim a personal injury through a corporate entity, and I’m rather disappointed that the Court stopped short of doing so.

        Theory:

        This was on purpose, because the Court really didn’t like the HL case, and they don’t want to see another one any time soon, and they figure it will be *more* likely to get more of those cases if they provide a test than less.

        Plausible?Report

      • Avatar Gabriel Conroy in reply to Mark Thompson
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        says:

        @mark-thompson

        Thanks for explaining the standing issue. That makes a lot more sense. (Also, I realize that you’ve probably had to explain this more than once….so thanks for doing so again for my sake.)Report

  34. Avatar Jim Heffman
    Ignored
    says:

    Harris v. Quinn also implies that we’re getting some pushback on the attitude of “you’re getting government money, that means the government gets to control everything you do”.Report

  35. Avatar greginak
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    says:

    Not completely unanticipated news: “…asking that he (Obama) exempt them from a forthcoming executive order that would prohibit federal contractors from discriminating against LGBT people.”

    http://talkingpointsmemo.com/livewire/religious-groups-lgbt-hiring-hobby-lobbyReport

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