Contraception is my business
March 25, 2014 10:52 AM Subscribe
This morning, the Supreme Court heard arguments in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius, two cases where private corporations have challenged the Affordable Care Act's contraception coverage mandate.
Previously, and previously
The Hobby Lobby SCOTUS Circus, in Pictures
Salon: 4 really important things you should know about the Hobby Lobby SCOTUS case: Hobby Lobby already covered 16 of the 20 methods of contraception mandated under the Affordable Care Act, but it didn’t cover Plan B One-Step, Ella (another brand of emergency contraception) and two forms of intrauterine devices. This is because the owners of Hobby Lobby have incorrectly labeled these methods of birth control and emergency contraception as “abortifacients,” a claim popular among anti-choice ideologues but refuted by scientific evidence and major reproductive health associations.
WSJ Live Blog of the arguments
Mother Jones: Are You There, God? It's Me, Hobby Lobby: Motives aside, theoretically the court in Hobby Lobby is being asked to make an entirely subjective judgment as to the sincerity of a plaintiff's religious beliefs and whether a government regulation poses a "substantial burden" on them. Such things aren't easily measured, and doing so puts the courts at risk of passing judgment on the religious beliefs themselves, a big constitutional no-no. That's why back in 1990 the court abandoned the Sherbert test for something more straightforward: Is the law generally applicable or does it single out a specific religious belief for punishment?
ThinkProgress: Justice Kennedy Thinks Hobby Lobby Is An Abortion Case — That’s Bad News For Birth Control: Kennedy did something different, he did not weigh in on the question of whether non-abortions can count as abortion — indeed, he seemed to understand the difference between birth control and abortion. Nevertheless, he looked at the government’s requirement to provide birth control coverage and envisioned a future law compelling Hobby Lobby to pay for actual abortions — just as he once gazed upon a requirement to buy health insurance and imagined the government forcing everyone to buy broccoli. In Justice Kennedy’s Courtroom, the government doesn’t have to defend the law it actually passed, it has to defend the worst law Kennedy can imagine them passing — even if that law would never make it through Congress.
NPR: High Court Seems Divided Over Birth Control Rule
The Hobby Lobby SCOTUS Circus, in Pictures
Salon: 4 really important things you should know about the Hobby Lobby SCOTUS case: Hobby Lobby already covered 16 of the 20 methods of contraception mandated under the Affordable Care Act, but it didn’t cover Plan B One-Step, Ella (another brand of emergency contraception) and two forms of intrauterine devices. This is because the owners of Hobby Lobby have incorrectly labeled these methods of birth control and emergency contraception as “abortifacients,” a claim popular among anti-choice ideologues but refuted by scientific evidence and major reproductive health associations.
WSJ Live Blog of the arguments
Mother Jones: Are You There, God? It's Me, Hobby Lobby: Motives aside, theoretically the court in Hobby Lobby is being asked to make an entirely subjective judgment as to the sincerity of a plaintiff's religious beliefs and whether a government regulation poses a "substantial burden" on them. Such things aren't easily measured, and doing so puts the courts at risk of passing judgment on the religious beliefs themselves, a big constitutional no-no. That's why back in 1990 the court abandoned the Sherbert test for something more straightforward: Is the law generally applicable or does it single out a specific religious belief for punishment?
ThinkProgress: Justice Kennedy Thinks Hobby Lobby Is An Abortion Case — That’s Bad News For Birth Control: Kennedy did something different, he did not weigh in on the question of whether non-abortions can count as abortion — indeed, he seemed to understand the difference between birth control and abortion. Nevertheless, he looked at the government’s requirement to provide birth control coverage and envisioned a future law compelling Hobby Lobby to pay for actual abortions — just as he once gazed upon a requirement to buy health insurance and imagined the government forcing everyone to buy broccoli. In Justice Kennedy’s Courtroom, the government doesn’t have to defend the law it actually passed, it has to defend the worst law Kennedy can imagine them passing — even if that law would never make it through Congress.
NPR: High Court Seems Divided Over Birth Control Rule
it has to defend the worst law Kennedy can imagine them passing — even if that law would never make it through Congress.
I think that's a feature, rather than a bug, even if it does mean that some kind of crummy things stick around.
The Hobby Lobby question does raise an interesting point, though, particularly in the science of birth control aspect. Are people's religious beliefs protected, even when they are quantifiably wrong? If the Greens sincerely believe that something causes abortions, (Or, say, Jenny McCarthy that vaccines cause autism) does it matter that they don't, if the test is based on belief?
posted by corb at 10:59 AM on March 25, 2014
I think that's a feature, rather than a bug, even if it does mean that some kind of crummy things stick around.
The Hobby Lobby question does raise an interesting point, though, particularly in the science of birth control aspect. Are people's religious beliefs protected, even when they are quantifiably wrong? If the Greens sincerely believe that something causes abortions, (Or, say, Jenny McCarthy that vaccines cause autism) does it matter that they don't, if the test is based on belief?
posted by corb at 10:59 AM on March 25, 2014
In Justice Kennedy’s Courtroom, the government doesn’t have to defend the law it actually passed, it has to defend the worst law Kennedy can imagine them passing — even if that law would never make it through Congress.
Well, yeah. If you're asking for a new precedent (or, depending on which way you're arguing, an affirmation of existing precedent; very few petitioners outright ask the justices to overrule a past Court) you have to be mindful of how your preferred ruling could lead lower courts to rule on other cases that touch on that same area of law.
posted by Holy Zarquon's Singing Fish at 11:01 AM on March 25, 2014 [5 favorites]
Well, yeah. If you're asking for a new precedent (or, depending on which way you're arguing, an affirmation of existing precedent; very few petitioners outright ask the justices to overrule a past Court) you have to be mindful of how your preferred ruling could lead lower courts to rule on other cases that touch on that same area of law.
posted by Holy Zarquon's Singing Fish at 11:01 AM on March 25, 2014 [5 favorites]
This is because the owners of Hobby Lobby have incorrectly labeled these methods of birth control and emergency contraception as “abortifacients” ...
I don't understand why this doesn't make it an open-and-shut case. My expression of religion, even if relevant as a corporation, does not extend so far as to redefine facts as a matter of law. I can't spew radioactive waste into the water supply because my religion says radiation is good for you. I don't get to drive without insurance because my religion says I'm not going to get into a car accident. How is this any different?
posted by 0xFCAF at 11:02 AM on March 25, 2014 [35 favorites]
I don't understand why this doesn't make it an open-and-shut case. My expression of religion, even if relevant as a corporation, does not extend so far as to redefine facts as a matter of law. I can't spew radioactive waste into the water supply because my religion says radiation is good for you. I don't get to drive without insurance because my religion says I'm not going to get into a car accident. How is this any different?
posted by 0xFCAF at 11:02 AM on March 25, 2014 [35 favorites]
Corporations are not people. It is important for the future of this country that the Hobby Lobby corporation lose this case.
posted by Blazecock Pileon at 11:02 AM on March 25, 2014 [73 favorites]
posted by Blazecock Pileon at 11:02 AM on March 25, 2014 [73 favorites]
Can we just decide that Hobby Lobby has to pay child support to all children born to its employees? That should solve the problem pretty quickly.
posted by GenjiandProust at 11:04 AM on March 25, 2014 [40 favorites]
posted by GenjiandProust at 11:04 AM on March 25, 2014 [40 favorites]
Corporations are not people. It is important for the future of this country that the Hobby Lobby corporation lose this case.
You actually want the court to rule that Hobby Lobby is a "person" here. If the government is ordering the corporate entity known as Hobby Lobby, rather than the individual humans who sit in its offices, to provide insurance coverage for contraception, it becomes much harder to prove that anybody's religious rights are being infringed. The executives go to church, but Hobby Lobby itself does not.
posted by Holy Zarquon's Singing Fish at 11:05 AM on March 25, 2014 [11 favorites]
You actually want the court to rule that Hobby Lobby is a "person" here. If the government is ordering the corporate entity known as Hobby Lobby, rather than the individual humans who sit in its offices, to provide insurance coverage for contraception, it becomes much harder to prove that anybody's religious rights are being infringed. The executives go to church, but Hobby Lobby itself does not.
posted by Holy Zarquon's Singing Fish at 11:05 AM on March 25, 2014 [11 favorites]
The End of Anti-Discrimination: The stakes in Tuesday's Hobby Lobby arguments couldn't be higher
Although there are technical differences between the two cases, both will force the justices to confront the future balance between the First Amendment on one hand and anti-discrimination laws on the other. In particular, the justices will have to decide whether the logic of Citizens United—that individuals who organize themselves as for-profit corporations have the same First Amendment rights as natural persons—includes rights of religious freedom as well as free speech. The justices may find narrower grounds to decide all three cases, but taken to their logical conclusion, the claims of the religious business owners in all of them would mean the end of anti-discrimination laws as we know them.posted by zombieflanders at 11:05 AM on March 25, 2014
[...]
The decisive vote in all three cases may come down to Anthony Kennedy, the justice who demonstrated a fierce libertarian hostility to the Affordable Care Act’s health care mandate and the author of Citizens United. In that case, he insisted on ruling broadly that corporations have the same free speech rights as natural persons. Now he has to confront the logical implications of his sweeping ruling and decide whether he is willing to jettison the entire structure of public accommodations and anti-discrimination laws, as well as the Obamacare contraception mandate in the process.
Are people's religious beliefs protected, even when they are quantifiably wrong?
That's an interesting way to think about it. The question I'm wondering about is, Can anyone's religious freedom be said to depend on control over the actions and outcomes of other people, who may not even profess the same religious orientation (not that this part matters much)? I can't see how liberty can be meaningfully retained if the answer is yes.
posted by clockzero at 11:06 AM on March 25, 2014 [32 favorites]
That's an interesting way to think about it. The question I'm wondering about is, Can anyone's religious freedom be said to depend on control over the actions and outcomes of other people, who may not even profess the same religious orientation (not that this part matters much)? I can't see how liberty can be meaningfully retained if the answer is yes.
posted by clockzero at 11:06 AM on March 25, 2014 [32 favorites]
SCOTUS experts, how long before we would conceivably see a ruling on this?
posted by zarq at 11:06 AM on March 25, 2014 [1 favorite]
posted by zarq at 11:06 AM on March 25, 2014 [1 favorite]
That's why back in 1990 the court abandoned the Sherbert test for something more straightforward
The Sherbert test is the most delicious test.
posted by dr_dank at 11:06 AM on March 25, 2014 [7 favorites]
The Sherbert test is the most delicious test.
posted by dr_dank at 11:06 AM on March 25, 2014 [7 favorites]
As I've said before, it doesn't matter what the managers of Hobby Lobby and Conestoga do or do not believe or whether those beliefs are objectively correct. Their beliefs are not at issue. Hobby Lobby and Conestoga are corporations, and so have no religious beliefs whatsoever.
As various amicus briefs have pointed out, the management of Hobby Lobby and Conestoga are effectively trying to pierce the corporate veil and apply their own religious beliefs to the companies, while maintaining their own protection from liability, etc. In other words, they want their companies to be separate entities when it suits them, but extensions of their own will when that suits them. They want the veil to work in one direction only.
So fuck them.
posted by Naberius at 11:07 AM on March 25, 2014 [114 favorites]
As various amicus briefs have pointed out, the management of Hobby Lobby and Conestoga are effectively trying to pierce the corporate veil and apply their own religious beliefs to the companies, while maintaining their own protection from liability, etc. In other words, they want their companies to be separate entities when it suits them, but extensions of their own will when that suits them. They want the veil to work in one direction only.
So fuck them.
posted by Naberius at 11:07 AM on March 25, 2014 [114 favorites]
I find the very basics of this confusing. Is it my religious freedom to force my employees not to buy alcohol with the dollars I give them? They can do all sorts of disagreeable things with their dollars, should I be able to pay them in special morality dollars that can only be spent on the things I like?
How can it possibly be argued that health compensation is different from dollar compensation? Allowing employers to dictate what employees do with compensation is a disturbing and grotesque perversion of freedom.
No employer's religion allows them to impinge on the choices of their employees. Can non-corporate partnerships do this?
posted by Llama-Lime at 11:08 AM on March 25, 2014 [20 favorites]
How can it possibly be argued that health compensation is different from dollar compensation? Allowing employers to dictate what employees do with compensation is a disturbing and grotesque perversion of freedom.
No employer's religion allows them to impinge on the choices of their employees. Can non-corporate partnerships do this?
posted by Llama-Lime at 11:08 AM on March 25, 2014 [20 favorites]
Can we just decide that Hobby Lobby has to pay child support to all children born to its employees? That should solve the problem pretty quickly.
Precisely. First you bitch about my mat leave and sick kids and wanting me to be more loyal to the company, and then you won't cover my bc.
Better not let me wear pants to work either. Then I might think I'm worth something and want to be taken seriously or something.
posted by St. Peepsburg at 11:09 AM on March 25, 2014 [8 favorites]
Precisely. First you bitch about my mat leave and sick kids and wanting me to be more loyal to the company, and then you won't cover my bc.
Better not let me wear pants to work either. Then I might think I'm worth something and want to be taken seriously or something.
posted by St. Peepsburg at 11:09 AM on March 25, 2014 [8 favorites]
Corporations are not people. It is important for the future of this country that the Hobby Lobby corporation lose this case.
FTFA:
3. The business community isn’t rooting for Hobby Lobby to win this one.
If the Supreme Court sides with Hobby Lobby and agrees that corporations are people with religious convictions, the ruling would basically destroy what’s known as the corporate veil (which means to treat a corporation as a distinct entity from its owners or shareholders) — a precedent that would have far-ranging consequences.
Which may explain why corporate America has been unusually quiet about the case. As David H. Gans recently noted at Slate, “Not one Fortune 500 company filed a brief in the case. Apart from a few isolated briefs from companies just like Hobby Lobby and Conestoga Wood, the U.S. business community offered no support for the claim that secular, for-profit corporations are persons that can exercise religion.”
posted by MisantropicPainforest at 11:10 AM on March 25, 2014 [5 favorites]
FTFA:
3. The business community isn’t rooting for Hobby Lobby to win this one.
If the Supreme Court sides with Hobby Lobby and agrees that corporations are people with religious convictions, the ruling would basically destroy what’s known as the corporate veil (which means to treat a corporation as a distinct entity from its owners or shareholders) — a precedent that would have far-ranging consequences.
Which may explain why corporate America has been unusually quiet about the case. As David H. Gans recently noted at Slate, “Not one Fortune 500 company filed a brief in the case. Apart from a few isolated briefs from companies just like Hobby Lobby and Conestoga Wood, the U.S. business community offered no support for the claim that secular, for-profit corporations are persons that can exercise religion.”
posted by MisantropicPainforest at 11:10 AM on March 25, 2014 [5 favorites]
SCOTUS experts, how long before we would conceivably see a ruling on this?
The term ends in late June. Big-news contentious cases get decided the last day of the term.
My expression of religion, even if relevant as a corporation, does not extend so far as to redefine facts as a matter of law. I can't spew radioactive waste into the water supply because my religion says radiation is good for you. I don't get to drive without insurance because my religion says I'm not going to get into a car accident. How is this any different?
Religious beliefs don't have to make sense. They can be stupid as the stupidest shit that's ever stupid-ed, as long as they are "sincerely held." The difference between this case and "toxic waste as a sacrament" is not that those beliefs would be determined to be too dumb to respect - it's that protecting people from the effects of water pollution, or from accidents caused by uninsured motorists, etc. is a "compelling government interest" that trumps an individual's freedom to avoid obligations they believe are sinful.
posted by Holy Zarquon's Singing Fish at 11:10 AM on March 25, 2014 [4 favorites]
The term ends in late June. Big-news contentious cases get decided the last day of the term.
My expression of religion, even if relevant as a corporation, does not extend so far as to redefine facts as a matter of law. I can't spew radioactive waste into the water supply because my religion says radiation is good for you. I don't get to drive without insurance because my religion says I'm not going to get into a car accident. How is this any different?
Religious beliefs don't have to make sense. They can be stupid as the stupidest shit that's ever stupid-ed, as long as they are "sincerely held." The difference between this case and "toxic waste as a sacrament" is not that those beliefs would be determined to be too dumb to respect - it's that protecting people from the effects of water pollution, or from accidents caused by uninsured motorists, etc. is a "compelling government interest" that trumps an individual's freedom to avoid obligations they believe are sinful.
posted by Holy Zarquon's Singing Fish at 11:10 AM on March 25, 2014 [4 favorites]
I just think this legal challenge's conception of freedom disturbingly perverse. You're not free unless you can control other people's actions?
posted by clockzero at 11:11 AM on March 25, 2014 [12 favorites]
posted by clockzero at 11:11 AM on March 25, 2014 [12 favorites]
I wish it were a compelling government interest to not protect corporations that lie about things, even if those corporations sincerely believe those lies.
posted by rtha at 11:12 AM on March 25, 2014 [8 favorites]
posted by rtha at 11:12 AM on March 25, 2014 [8 favorites]
corb: " The Hobby Lobby question does raise an interesting point, though, particularly in the science of birth control aspect. Are people's religious beliefs protected, even when they are quantifiably wrong?
Sometimes. Usually not when they infringe on other people. You can choose not to vaccinate your kids for religious reasons. But most states won't let you then send your kids to public school. You don't have a right to endanger others in the name of religion.
Anyway, this isn't just about religious belief. It's about an attempt to control medical decisions made by their employees based on pseudoscience and superstition. It is an act of forcing their religious beliefs on others. I think employees should be protected from having their bosses' religions forced upon them, yes.
Should Jewish employers be allowed to dictate to you whether or not you can circumcise your child if you're not Jewish? (Or even if you are?) Should your Jehovah's Witness boss be able to ban you from donating blood? The very idea is ludicrous.
posted by zarq at 11:17 AM on March 25, 2014 [19 favorites]
Sometimes. Usually not when they infringe on other people. You can choose not to vaccinate your kids for religious reasons. But most states won't let you then send your kids to public school. You don't have a right to endanger others in the name of religion.
Anyway, this isn't just about religious belief. It's about an attempt to control medical decisions made by their employees based on pseudoscience and superstition. It is an act of forcing their religious beliefs on others. I think employees should be protected from having their bosses' religions forced upon them, yes.
Should Jewish employers be allowed to dictate to you whether or not you can circumcise your child if you're not Jewish? (Or even if you are?) Should your Jehovah's Witness boss be able to ban you from donating blood? The very idea is ludicrous.
posted by zarq at 11:17 AM on March 25, 2014 [19 favorites]
The ruling in a reasonable universe:
After due consideration, we find that the Hobby Lobby corporation and its agents are under no requirement in current law to consume the alleged abortifacients in question. Pursuant to that lack of mandate, we defer to the existing precedents in Mind Your Own Beeswax v. Harding and State of Virginia v. Duh.posted by 0xFCAF at 11:22 AM on March 25, 2014 [19 favorites]
This stupidity just serves to convince me that if I had a time machine, job 1 would be Hitler, and job 2 would be punching the daylights out of whatever genius first linked employment to health insurance.
posted by Holy Zarquon's Singing Fish at 11:22 AM on March 25, 2014 [17 favorites]
posted by Holy Zarquon's Singing Fish at 11:22 AM on March 25, 2014 [17 favorites]
Should Jewish employers be allowed to dictate to you whether or not you can circumcise your child if you're not Jewish? (Or even if you are?) Should your Jehovah's Witness boss be able to ban you from donating blood? The very idea is ludicrous.
Or drugs to suppress HIV because of "the gay plague," or cancer treatments taken from stem cells because stem cells are murder, etc. Or, for that matter, the millions of women who use contraceptive drugs for medical reasons unrelated to procreation.
posted by zombieflanders at 11:22 AM on March 25, 2014 [18 favorites]
Or drugs to suppress HIV because of "the gay plague," or cancer treatments taken from stem cells because stem cells are murder, etc. Or, for that matter, the millions of women who use contraceptive drugs for medical reasons unrelated to procreation.
posted by zombieflanders at 11:22 AM on March 25, 2014 [18 favorites]
Look, if health insurance covers HIV, that will just encourage people to have premarital sex. It's for their own good!
posted by Holy Zarquon's Singing Fish at 11:24 AM on March 25, 2014 [3 favorites]
posted by Holy Zarquon's Singing Fish at 11:24 AM on March 25, 2014 [3 favorites]
This stupidity just serves to convince me that if I had a time machine, job 1 would be Hitler, and job 2 would be punching the daylights out of whatever genius first linked employment to health insurance.
Ironically, you'd be punching Hitler and then Roosevelt, since the insurance/employment link goes back to WWII wage controls.
posted by anotherpanacea at 11:25 AM on March 25, 2014 [15 favorites]
Ironically, you'd be punching Hitler and then Roosevelt, since the insurance/employment link goes back to WWII wage controls.
posted by anotherpanacea at 11:25 AM on March 25, 2014 [15 favorites]
Should Jewish employers be allowed to dictate to you whether or not you can circumcise your child if you're not Jewish?
I think, in terms of this case, the question would be whether a Jewish employer should be compelled to fund your child's circumcision via whatever healthcare policy they are paying for. You would be free to pay for the procedure yourself, out of pocket.
Likewise, in the Jehova's Witness example, you giving blood would not be something the employer would be funding. However, in terms of this case, the question would be whether they should funding blood transfusions in the course of an operation if their company healthcare policy is used. Again, the employee would be free to pay for the blood used.
If SCOTUS rules for Hobby Lobby, all sorts of shit like this will become fair game. I can see umpteen small businesses using religion (or, "religion") to get around all manner of requirements.
Unfortunately, my gut is telling me that SCOTUS will, in fact, rule for Hobby Lobby. Then again, I'm extremely pessimistic about the next 10-20 years here in the US.
posted by Thorzdad at 11:27 AM on March 25, 2014 [13 favorites]
I think, in terms of this case, the question would be whether a Jewish employer should be compelled to fund your child's circumcision via whatever healthcare policy they are paying for. You would be free to pay for the procedure yourself, out of pocket.
Likewise, in the Jehova's Witness example, you giving blood would not be something the employer would be funding. However, in terms of this case, the question would be whether they should funding blood transfusions in the course of an operation if their company healthcare policy is used. Again, the employee would be free to pay for the blood used.
If SCOTUS rules for Hobby Lobby, all sorts of shit like this will become fair game. I can see umpteen small businesses using religion (or, "religion") to get around all manner of requirements.
Unfortunately, my gut is telling me that SCOTUS will, in fact, rule for Hobby Lobby. Then again, I'm extremely pessimistic about the next 10-20 years here in the US.
posted by Thorzdad at 11:27 AM on March 25, 2014 [13 favorites]
Ironically, you'd be punching Hitler and then Roosevelt, since the insurance/employment link goes back to WWII wage controls.
The law of unintended consequences is a harsh mistress. You try to help keep wartime wages on an even keel, you end up ruining healthcare forever and get punched in the nose by an angry nerd with a DeLorean.
posted by Holy Zarquon's Singing Fish at 11:28 AM on March 25, 2014 [71 favorites]
The law of unintended consequences is a harsh mistress. You try to help keep wartime wages on an even keel, you end up ruining healthcare forever and get punched in the nose by an angry nerd with a DeLorean.
posted by Holy Zarquon's Singing Fish at 11:28 AM on March 25, 2014 [71 favorites]
From Atrios:
"someone make me a sandwich before my sincerely held religious beliefs get violated"
posted by MisantropicPainforest at 11:28 AM on March 25, 2014 [9 favorites]
"someone make me a sandwich before my sincerely held religious beliefs get violated"
posted by MisantropicPainforest at 11:28 AM on March 25, 2014 [9 favorites]
Justices Breyer and Scalia suggested that the government could perhaps accommodate religious belief by paying for the challenged contraceptives itself. Mr. Verrilli said that would expose taxpayers to an open-ended cost. Justice Scalia said it can’t be that expensive to provide three or four contraceptives. Mr. Verrilli replied that the most effective form of emergency contraceptive, the intrauterine device or IUD, was in fact quite costly up-front.
Ah, Tony, clueless as ever, I see.
posted by longdaysjourney at 11:29 AM on March 25, 2014 [1 favorite]
Ah, Tony, clueless as ever, I see.
posted by longdaysjourney at 11:29 AM on March 25, 2014 [1 favorite]
So Scalia is arguing for single-payer?
posted by These Premises Are Alarmed at 11:32 AM on March 25, 2014 [33 favorites]
posted by These Premises Are Alarmed at 11:32 AM on March 25, 2014 [33 favorites]
Ah, Tony, clueless as ever, I see.
Especially since he's essentially arguing for single-payer health care there. If it weren't for the fact that this looks like a trojan horse for the libertariandysutopia of letting businesses discriminate because "the market" would self-adjust (counterpoint: the entirety of US history), I would consider getting Medicare For All an acceptable trade-off.
posted by zombieflanders at 11:33 AM on March 25, 2014 [3 favorites]
Especially since he's essentially arguing for single-payer health care there. If it weren't for the fact that this looks like a trojan horse for the libertarian
posted by zombieflanders at 11:33 AM on March 25, 2014 [3 favorites]
It's amazing how many problems would go away if health insurance wasn't something the employer was mixed up in.
posted by randomkeystrike at 11:34 AM on March 25, 2014 [28 favorites]
posted by randomkeystrike at 11:34 AM on March 25, 2014 [28 favorites]
or cancer treatments taken from stem cells because stem cells are murder
You don't have to go that far. The rubella vaccine (among others) is derived from stem cells from elective abortions. The catholic church is OK with them (as of 2005!), but historically there were plenty of religious objections.
posted by a robot made out of meat at 11:35 AM on March 25, 2014 [1 favorite]
You don't have to go that far. The rubella vaccine (among others) is derived from stem cells from elective abortions. The catholic church is OK with them (as of 2005!), but historically there were plenty of religious objections.
posted by a robot made out of meat at 11:35 AM on March 25, 2014 [1 favorite]
Thorzdad: " I think, in terms of this case, the question would be whether a Jewish employer should be compelled to fund your child's circumcision via whatever healthcare policy they are paying for. You would be free to pay for the procedure yourself, out of pocket.
The idea that they are being "compelled" in any way to involve themselves in private medical decisions is problematic from the outset.
The issue here is whether they have a say in what medical procedures you or your family may obtain through insurance policies that they partially fund. Not whether they should have to pay for an employee's insurance.
posted by zarq at 11:36 AM on March 25, 2014 [7 favorites]
The idea that they are being "compelled" in any way to involve themselves in private medical decisions is problematic from the outset.
The issue here is whether they have a say in what medical procedures you or your family may obtain through insurance policies that they partially fund. Not whether they should have to pay for an employee's insurance.
posted by zarq at 11:36 AM on March 25, 2014 [7 favorites]
I would be happy with a decision that went something like, "Sure, you can skip out on insurance that provides X, as long as you pay all of your employees who use X a weekly bonus equal to the full amount that would be needed to obtain the amount of X they used in that week."
The result would be much more expensive from the company's perspective. When the company objects that it has now become the direct insurer / provider of the objectionable X, the Court replies, "No, silly, you are only obligated to provide an amount of money; your employees are free to purchase whatever they want with that money, just like they are free to purchase whatever they want with the other money you owe them."
[Filed under "Fantasies that Jonathan has about government from time to time."]
posted by Jonathan Livengood at 11:49 AM on March 25, 2014 [3 favorites]
The result would be much more expensive from the company's perspective. When the company objects that it has now become the direct insurer / provider of the objectionable X, the Court replies, "No, silly, you are only obligated to provide an amount of money; your employees are free to purchase whatever they want with that money, just like they are free to purchase whatever they want with the other money you owe them."
[Filed under "Fantasies that Jonathan has about government from time to time."]
posted by Jonathan Livengood at 11:49 AM on March 25, 2014 [3 favorites]
Jonathan Livengood, that is a terrible idea in that it would require employees to disclose to their employers the medical treatments that they are receiving.
posted by enn at 11:52 AM on March 25, 2014 [5 favorites]
posted by enn at 11:52 AM on March 25, 2014 [5 favorites]
Should Jewish employers be allowed to dictate to you whether or not you can circumcise your child if you're not Jewish? (Or even if you are?) Should your Jehovah's Witness boss be able to ban you from donating blood? The very idea is ludicrous.
Suddenly every corporation is Christian Scientist and thus exempt from providing any sort of health insurance.
posted by Pope Guilty at 11:53 AM on March 25, 2014 [21 favorites]
Suddenly every corporation is Christian Scientist and thus exempt from providing any sort of health insurance.
posted by Pope Guilty at 11:53 AM on March 25, 2014 [21 favorites]
> Are people's religious beliefs protected, even when they are quantifiably wrong? If the Greens sincerely believe that something causes abortions,
Say, what?! Since when was "Green" a religion?
posted by lupus_yonderboy at 11:53 AM on March 25, 2014
Say, what?! Since when was "Green" a religion?
posted by lupus_yonderboy at 11:53 AM on March 25, 2014
Jonathan Livengood, that is a terrible idea in that it would require employees to disclose to their employers the medical treatments that they are receiving.
Not really, though. You can just submit a bill with the procedures blacked out, with the total amount due to the employer.
posted by roomthreeseventeen at 11:54 AM on March 25, 2014
Not really, though. You can just submit a bill with the procedures blacked out, with the total amount due to the employer.
posted by roomthreeseventeen at 11:54 AM on March 25, 2014
Say, what?! Since when was "Green" a religion?
It's not a religion, it's a name. David and Barbara Green, owners of Hobby Lobby.
posted by Holy Zarquon's Singing Fish at 11:54 AM on March 25, 2014 [4 favorites]
It's not a religion, it's a name. David and Barbara Green, owners of Hobby Lobby.
posted by Holy Zarquon's Singing Fish at 11:54 AM on March 25, 2014 [4 favorites]
To me, this boils down to a simple issue. There's absolutely nothing that says Hobby Lobby has to provide health insurance to its employees at all. The law simply says that if they choose to provide health insurance, it must meet certain standards to actually be called "health insurance." If they choose not to do so, they have to pay a tax toward the social costs of health care for their employees instead. This was discussed nicely at Balkinization last year.
It would, in fact, be cheaper to cancel their health plans and just pay the taxes. Yes, the conditions of the labor market (and the desire of executives to have Cadillac plans for their families) may be such that this choice makes it harder to recruit and retain employees, but that's the employer's problem, not the government's.
So basically, the government is imposing a tax, which is perfectly constitutional, even if some of the money goes to stuff your religion is adamantly opposed to, like nukes. As an alternative, businesses are exempt from the tax if they provide certain health benefits to their employees. If you don't want to provide those benefits, whether for religious reasons or otherwise, then you pay your taxes and move on. Similarly, nobody is forcing me to buy an electric car, even if I truly believe electricity is the spawn of the devil and my SmartMeter is controlling my brain, despite the tax credit I can get if I buy one.
posted by zachlipton at 11:55 AM on March 25, 2014 [4 favorites]
It would, in fact, be cheaper to cancel their health plans and just pay the taxes. Yes, the conditions of the labor market (and the desire of executives to have Cadillac plans for their families) may be such that this choice makes it harder to recruit and retain employees, but that's the employer's problem, not the government's.
So basically, the government is imposing a tax, which is perfectly constitutional, even if some of the money goes to stuff your religion is adamantly opposed to, like nukes. As an alternative, businesses are exempt from the tax if they provide certain health benefits to their employees. If you don't want to provide those benefits, whether for religious reasons or otherwise, then you pay your taxes and move on. Similarly, nobody is forcing me to buy an electric car, even if I truly believe electricity is the spawn of the devil and my SmartMeter is controlling my brain, despite the tax credit I can get if I buy one.
posted by zachlipton at 11:55 AM on March 25, 2014 [4 favorites]
As opposed to The Greens, a political party, who might *generally* believe toxic stuff causes bad things....
posted by mikelieman at 11:55 AM on March 25, 2014
posted by mikelieman at 11:55 AM on March 25, 2014
You'd need to prove that the procedure was something that's supposed to be covered by employer provided insurance. That requires knowing what the procedure is. I suppose it could be done by a letter from the doctor certifying that it's something covered, but honestly the easiest thing is just to make Hobby Lobby provide the insurance. It's not like American health insurance has too few hoops already.
posted by Bulgaroktonos at 11:55 AM on March 25, 2014 [1 favorite]
posted by Bulgaroktonos at 11:55 AM on March 25, 2014 [1 favorite]
There's absolutely nothing that says Hobby Lobby has to provide health insurance to its employees at all.
Unless I'm badly mistaken, I'm pretty sure the PPACA requires employers with over 50 full-time employees to provide health insurance.
posted by Pope Guilty at 11:56 AM on March 25, 2014 [2 favorites]
Unless I'm badly mistaken, I'm pretty sure the PPACA requires employers with over 50 full-time employees to provide health insurance.
posted by Pope Guilty at 11:56 AM on March 25, 2014 [2 favorites]
It requires they provide health insurance or pay a tax, according to the Supreme Court.
posted by wierdo at 11:57 AM on March 25, 2014 [1 favorite]
posted by wierdo at 11:57 AM on March 25, 2014 [1 favorite]
Yeah, the employer mandate is enforced by a financial penalty/tax, just like the individual mandate. It's $2000 per employee per Balkinization, which is a drop in the fuckin' bucket compared to the cost of actually providing health insurance.
posted by Holy Zarquon's Singing Fish at 11:58 AM on March 25, 2014 [2 favorites]
posted by Holy Zarquon's Singing Fish at 11:58 AM on March 25, 2014 [2 favorites]
My religion forbids from listening to anything the Supreme Court says, so I'm in the clear.
posted by dances_with_sneetches at 12:02 PM on March 25, 2014
posted by dances_with_sneetches at 12:02 PM on March 25, 2014
Skimming the oral arguments fills me with dread that we'll be seeing another 5-4 "split the baby" special from Kennedy where inconvenient precedents are ignored, spurious dicta from the late 19th century are cited as gospel, and some version of Potter Stewart's "I know it when I see it" doctrine becomes cart blanche for state governments to choose exactly what religious beliefs are allowed to be considered "sincere."
posted by tonycpsu at 12:03 PM on March 25, 2014 [4 favorites]
posted by tonycpsu at 12:03 PM on March 25, 2014 [4 favorites]
> It's not a religion, it's a name. David and Barbara Green, owners of Hobby Lobby.
GLUG! :-D And I even read the article - but somehow didn't process this right!
posted by lupus_yonderboy at 12:03 PM on March 25, 2014 [1 favorite]
GLUG! :-D And I even read the article - but somehow didn't process this right!
posted by lupus_yonderboy at 12:03 PM on March 25, 2014 [1 favorite]
Mr. Verrilli replied that the most effective form of emergency contraceptive, the intrauterine device or IUD, was in fact quite costly up-front.
And the cost of an IUD as a sticking point is laughably low compared to, say, your average birth. Unless we're going to stop paying for births too? Wouldn't be surprised. After all, ladies who can't afford to pay for birth out of pocket shouldn't get pregnant, then.
From the POV of these assholes, having any kind of sex life (hetero, anyway) and reproducing are luxuries that should only be allowed to the rich, because wealth=virture and so only they deserve those privileges. Anyone seeking to use those privileges without access to wealth/virtue deserves whatever hardship may result. How dare they!
posted by emjaybee at 12:04 PM on March 25, 2014 [5 favorites]
And the cost of an IUD as a sticking point is laughably low compared to, say, your average birth. Unless we're going to stop paying for births too? Wouldn't be surprised. After all, ladies who can't afford to pay for birth out of pocket shouldn't get pregnant, then.
From the POV of these assholes, having any kind of sex life (hetero, anyway) and reproducing are luxuries that should only be allowed to the rich, because wealth=virture and so only they deserve those privileges. Anyone seeking to use those privileges without access to wealth/virtue deserves whatever hardship may result. How dare they!
posted by emjaybee at 12:04 PM on March 25, 2014 [5 favorites]
This is one of the bigest flaws in Obamacare. Instead of just trying to get some national consensus on universal health insurance, liberals had to insist on trotting out the most devisive hobby horse in American politics. This is a classic case of political overreach which will sabotage the entire project.
posted by three blind mice at 12:08 PM on March 25, 2014
posted by three blind mice at 12:08 PM on March 25, 2014
"How much could a banana contraceptives cost? Ten dollars?"
posted by Kadin2048 at 12:13 PM on March 25, 2014 [6 favorites]
posted by Kadin2048 at 12:13 PM on March 25, 2014 [6 favorites]
Please tell us what Obamacare proposal would have been acceptable to Hobby Lobby.
posted by MisantropicPainforest at 12:13 PM on March 25, 2014 [18 favorites]
posted by MisantropicPainforest at 12:13 PM on March 25, 2014 [18 favorites]
three blind mice: " Instead of just trying to get some national consensus on universal health insurance..."
There would never have been a national consensus on health insurance. Too many special interest groups and corporations tried to lobby the legislation.
posted by zarq at 12:15 PM on March 25, 2014 [7 favorites]
There would never have been a national consensus on health insurance. Too many special interest groups and corporations tried to lobby the legislation.
In all, 1,750 corporations or other groups reported lobbying on health care reform legislation at some point during 2009. That is, 11 percent of all groups that lobbied the federal government last year lobbied on health care reform.
These clients span special interest groups and economic sectors, ranging from more traditional health players such as hospitals, medical professionals, health insurers and drug companies to more diverse interests including organized labor, business groups, energy companies, food and beverage companies, defense contractors, retailers, municipalities, universities and religious-affiliated groups.
posted by zarq at 12:15 PM on March 25, 2014 [7 favorites]
I'm sorry that women's reproductive health is too "divisive" for you, Three Blind Mice.
posted by Benjy at 12:15 PM on March 25, 2014 [47 favorites]
posted by Benjy at 12:15 PM on March 25, 2014 [47 favorites]
Contraception is not the most divisive hobby horse in American politics. Indeed, with about 90% support in the country, and over 80% amongst Catholics, it's relatively universal in acceptance. It's only a third rail because of Moral Majority shitlords.
posted by zombieflanders at 12:17 PM on March 25, 2014 [67 favorites]
posted by zombieflanders at 12:17 PM on March 25, 2014 [67 favorites]
This stupidity just serves to convince me that if I had a time machine, job 1 would be Hitler, and job 2 would be punching the daylights out of whatever genius first linked employment to health insurance.
I keep reading that as "if I had a time machine, I would be Hitler," going "Now that's a confession," then rereading the 1. Who says typefaces aren't important?
posted by GenjiandProust at 12:17 PM on March 25, 2014 [5 favorites]
I keep reading that as "if I had a time machine, I would be Hitler," going "Now that's a confession," then rereading the 1. Who says typefaces aren't important?
posted by GenjiandProust at 12:17 PM on March 25, 2014 [5 favorites]
That's not to mention the voting public, represented by the "Fuck The Poor, I've Got Mine" and the "Drown the Government, But Don't Cut My Benefits Check" parties.
posted by zarq at 12:17 PM on March 25, 2014 [4 favorites]
posted by zarq at 12:17 PM on March 25, 2014 [4 favorites]
In all seriousness, if Hobby Lobby gets their way, what happens to companies owned by Christian Scientists? Can they refuse to pay for insurance that covers any medical care at all? (Or medical care aside from prayer, or whatever it is they like to do while they're dying of easily-preventable stuff?)
And wouldn't that give an instant market advantage to all businesses owned by Christian Scientists?
And if that's the case, what percentage of the company's stock has to be owned by Christian Scientists to get this sort of religious-belief shield and escape from the health-insurance requirement? 51%? I wonder if it would create a market for 51% shareholders, in the same way that Federal government contracting rules create a market for disabled veteran 51% shareholders. ("Here, you get 51% of the shares, I get the other 49% and then I pay myself a ridonkulous salary, and we split what's left over at the end of the year.")
Big companies like Walmart are unlikely to be able to take advantage of it, since the diversity of their shareholders would seem to preclude them from having any sort of unified religious beliefs, but small and medium businesses could easily take advantage of it. You could go well beyond just undoing Obamacare's requirements, you could eliminate the need for employer-paid health benefits in general.
posted by Kadin2048 at 12:19 PM on March 25, 2014 [4 favorites]
And wouldn't that give an instant market advantage to all businesses owned by Christian Scientists?
And if that's the case, what percentage of the company's stock has to be owned by Christian Scientists to get this sort of religious-belief shield and escape from the health-insurance requirement? 51%? I wonder if it would create a market for 51% shareholders, in the same way that Federal government contracting rules create a market for disabled veteran 51% shareholders. ("Here, you get 51% of the shares, I get the other 49% and then I pay myself a ridonkulous salary, and we split what's left over at the end of the year.")
Big companies like Walmart are unlikely to be able to take advantage of it, since the diversity of their shareholders would seem to preclude them from having any sort of unified religious beliefs, but small and medium businesses could easily take advantage of it. You could go well beyond just undoing Obamacare's requirements, you could eliminate the need for employer-paid health benefits in general.
posted by Kadin2048 at 12:19 PM on March 25, 2014 [4 favorites]
"Skimming the oral arguments fills me with dread that we'll be seeing another 5-4 "split the baby" special from Kennedy where inconvenient precedents are ignored, spurious dicta from the late 19th century are cited as gospel, and some version of Potter Stewart's "I know it when I see it" doctrine becomes cart blanche for state governments to choose exactly what religious beliefs are allowed to be considered "sincere.""
God, I hope one of the right-wing five drops off the court before 2016, so we can stop praying to Jesus that Kennedy is feeling the soft breeze of not destroying the fucking country every time he rules.
posted by klangklangston at 12:25 PM on March 25, 2014 [10 favorites]
God, I hope one of the right-wing five drops off the court before 2016, so we can stop praying to Jesus that Kennedy is feeling the soft breeze of not destroying the fucking country every time he rules.
posted by klangklangston at 12:25 PM on March 25, 2014 [10 favorites]
...liberals had to insist on trotting out the most devisive hobby horse in American politics.
Goddamn liberals dividing the nation by wanting healthcare coverage to include basic birth control. With such ridiculous demands, it's no wonder the Affordable Care Act was never passed.
posted by griphus at 12:27 PM on March 25, 2014 [16 favorites]
Goddamn liberals dividing the nation by wanting healthcare coverage to include basic birth control. With such ridiculous demands, it's no wonder the Affordable Care Act was never passed.
posted by griphus at 12:27 PM on March 25, 2014 [16 favorites]
Goddamn liberals dividing the nation by wanting healthcare coverage to include basic birth control healthcare.
posted by ultraviolet catastrophe at 12:31 PM on March 25, 2014 [26 favorites]
posted by ultraviolet catastrophe at 12:31 PM on March 25, 2014 [26 favorites]
the employer mandate is enforced by a financial penalty/tax, just like the individual mandate. It's $2000 per employee per Balkinization, which is a drop in the fuckin' bucket compared to the cost of actually providing health insurance.
Pretty much this. I work for a medium sized non-profit. Big enough that we'll have to face this question. Providing health insurance to all 30 hour + employees is going to be a significant hit to our operating cost. So much so that it sounds like canceling the health insurance currently offered, paying the tax and then providing an additional stipend for current 40 hour employees to buy insurance comparable to what we have now will be cheaper. Thing is too, even if a 30+ hour employee has insurance through a spouse or different job, or parents you still have to pay the tax if you don't offer them additional insurance above what they have.
It's a hell of a position to be in as most of the folks making the decision are pretty pro-employee and also would like to see universal health care, but being non-profit, our margins are a lot smaller then some jackass company like Hobby Lobby who can certainly afford the insurance, but is arguing on twisted moral grounds.
Birth control is not a religious issue; it is a basic health-care issue
posted by edgeways at 12:31 PM on March 25, 2014 [6 favorites]
Pretty much this. I work for a medium sized non-profit. Big enough that we'll have to face this question. Providing health insurance to all 30 hour + employees is going to be a significant hit to our operating cost. So much so that it sounds like canceling the health insurance currently offered, paying the tax and then providing an additional stipend for current 40 hour employees to buy insurance comparable to what we have now will be cheaper. Thing is too, even if a 30+ hour employee has insurance through a spouse or different job, or parents you still have to pay the tax if you don't offer them additional insurance above what they have.
It's a hell of a position to be in as most of the folks making the decision are pretty pro-employee and also would like to see universal health care, but being non-profit, our margins are a lot smaller then some jackass company like Hobby Lobby who can certainly afford the insurance, but is arguing on twisted moral grounds.
Birth control is not a religious issue; it is a basic health-care issue
posted by edgeways at 12:31 PM on March 25, 2014 [6 favorites]
One would think minimum wage, child labor, taxation, health code, discriminatory hiring practices, discriminatory (race, religion, creed, gender, sexuality, disability, age...) services all could find some sort of religious basis to be argued against. "You can't make me provide medical services to people who have mental illness because I believe they are possessed by the devil" is not a too far step from this nonsense.
posted by edgeways at 12:37 PM on March 25, 2014 [2 favorites]
posted by edgeways at 12:37 PM on March 25, 2014 [2 favorites]
My religion dictates that employees should only be paid in Bitcoin or small pieces of string.
posted by Holy Zarquon's Singing Fish at 12:41 PM on March 25, 2014 [5 favorites]
posted by Holy Zarquon's Singing Fish at 12:41 PM on March 25, 2014 [5 favorites]
> Sure, you can skip out on insurance that provides X, as long as you pay all of your employees who use X a weekly bonus equal to the full amount that would be needed to obtain the amount of X they used in that week
I don't want to tell my employer what form of birth control I do or do not use.
posted by The corpse in the library at 12:44 PM on March 25, 2014 [3 favorites]
I don't want to tell my employer what form of birth control I do or do not use.
posted by The corpse in the library at 12:44 PM on March 25, 2014 [3 favorites]
easy fixed, thy have to pay the cost of the highest BC on the market, to each and every employee. What you do with it ... eh
posted by edgeways at 12:45 PM on March 25, 2014 [2 favorites]
posted by edgeways at 12:45 PM on March 25, 2014 [2 favorites]
Sarah Posner's write-up at Religion Dispatches.
It was hard not to sense that somehow, if the coverage had been for something other than contraceptives -- say, as Sotomayor pressed several times, vaccinations or blood transfusions -- the question of the impact on employees might have been treated differently.posted by audi alteram partem at 12:50 PM on March 25, 2014 [5 favorites]
Man, none of this would be happening if we'd just won the War on Christmas.
posted by delfin at 12:53 PM on March 25, 2014 [27 favorites]
posted by delfin at 12:53 PM on March 25, 2014 [27 favorites]
cjelli: "Official transcript of today's arguments (PDF)."
Thanks for this.
I'm only on the third page but man, they jumped on him right out of the gate, didn't they?
posted by zarq at 12:53 PM on March 25, 2014
Thanks for this.
I'm only on the third page but man, they jumped on him right out of the gate, didn't they?
posted by zarq at 12:53 PM on March 25, 2014
... that is a terrible idea in that it would require employees to disclose to their employers the medical treatments that they are receiving.
Good point.
My initial thought was, "Have the employee submit a form to the government, which then requires the employer to pay the employee." But I think that misses the point of my original fantasy, which was much less about finding a solution that works -- the best practical solution in this case being for the Court to say, "The law applies to you, too, bozos, so stop whining" -- and much more about seeing stupid petitioners end up with a result that is worse from their perspective than when they started out.
posted by Jonathan Livengood at 12:56 PM on March 25, 2014
Good point.
My initial thought was, "Have the employee submit a form to the government, which then requires the employer to pay the employee." But I think that misses the point of my original fantasy, which was much less about finding a solution that works -- the best practical solution in this case being for the Court to say, "The law applies to you, too, bozos, so stop whining" -- and much more about seeing stupid petitioners end up with a result that is worse from their perspective than when they started out.
posted by Jonathan Livengood at 12:56 PM on March 25, 2014
Why does anyone respond to TBM? He's an ultra-conservative, "free-market", death-to-all-government libertarian who lives in, and enjoys the advantages of, one of the most socialist countries on earth, Sweden. It's like the boss level of "keep the government out of my medicaid!"
posted by maxwelton at 12:59 PM on March 25, 2014 [23 favorites]
posted by maxwelton at 12:59 PM on March 25, 2014 [23 favorites]
AK Republican wants to put pregnancy tests in all bars, at tax-payer expense, but not birth control because, "Birth control is for people who don’t necessarily want to act responsibly."
posted by dirigibleman at 1:08 PM on March 25, 2014
posted by dirigibleman at 1:08 PM on March 25, 2014
Sorry, couldn't help it.
posted by MisantropicPainforest at 1:09 PM on March 25, 2014
posted by MisantropicPainforest at 1:09 PM on March 25, 2014
maxwelton: "Why does anyone respond to TBM?"
Sometimes it's good to let voiced opinions go unchallenged. Sometimes, not.
posted by zarq at 1:11 PM on March 25, 2014 [3 favorites]
Sometimes it's good to let voiced opinions go unchallenged. Sometimes, not.
posted by zarq at 1:11 PM on March 25, 2014 [3 favorites]
dirigibleman: AK Republican: ""Birth control is for people who don’t necessarily want to act responsibly.""
what
posted by zarq at 1:11 PM on March 25, 2014 [3 favorites]
what
posted by zarq at 1:11 PM on March 25, 2014 [3 favorites]
undoubtedly it's a fetus thing.. Know instantly if you're pregnant so you can stop drinking right away and preserve the heath of the 'unborn'.
coming soon, all women of childbearing age must prove they are not pregnant before being served alcohol.
posted by edgeways at 1:13 PM on March 25, 2014 [5 favorites]
coming soon, all women of childbearing age must prove they are not pregnant before being served alcohol.
posted by edgeways at 1:13 PM on March 25, 2014 [5 favorites]
I have to admit I'm a little puzzled by the lengths that Hobby Lobby is going to in order to fight this. It's gotta be costing a whole lot of money for the lawyers, and I can't help but wonder... what's in it for Hobby Lobby? It's not going to garner a vast increase in the number of people who shop there if they win, and with a business of that size the difference in the taxes and wages they pay their people isn't going to matter much one way or the other. So... why? Why go through all this for such a small benefit to their business? Unless of course somebody else is ponying up the cash, and using Hobby Lobby as a stalking horse. Which nobody seems to be wondering about, because it's so much more exciting to focus on God's own faithful vs. those sluts who need birth control.
posted by Mary Ellen Carter at 1:32 PM on March 25, 2014 [3 favorites]
posted by Mary Ellen Carter at 1:32 PM on March 25, 2014 [3 favorites]
Hobby Lobby gets financial and legal support from The Becket Fund, a cabal of ultra-right wing Catholics whose efforts here and against other civil liberties are funded by the Knights of Columbus. They also have ties to NOM and other extremist right wing groups.
posted by Blazecock Pileon at 1:42 PM on March 25, 2014 [13 favorites]
posted by Blazecock Pileon at 1:42 PM on March 25, 2014 [13 favorites]
It's gotta be costing a whole lot of money for the lawyers, and I can't help but wonder... what's in it for Hobby Lobby?I think that they really and truly believe that God wants them to deny women medical care, which is probably more scary than the idea that they're in it for the money. I really don't think that the court case can be a good business decision. I personally drove 15 minutes out of my way last weekend so that I could buy $40 worth of craft supplies at Michael's rather than Hobby Lobby. We're talking about a business that has an overwhelmingly female customer base, and some of us have to have normal opinions about contraception and healthcare.
posted by ArbitraryAndCapricious at 1:51 PM on March 25, 2014 [10 favorites]
Mary Ellen Carter: "It's not going to garner a vast increase in the number of people who shop there if they win"
I don't think winning matters if you're perceived as fighting the good fight, and I think you might underestimate the size of the "Chick-Fil-A effect" when conservatives want to send a message. I also think the Greens really do believe in the cause, and are willing to take an economic hit if it advances their ideology.
posted by tonycpsu at 1:52 PM on March 25, 2014 [3 favorites]
I don't think winning matters if you're perceived as fighting the good fight, and I think you might underestimate the size of the "Chick-Fil-A effect" when conservatives want to send a message. I also think the Greens really do believe in the cause, and are willing to take an economic hit if it advances their ideology.
posted by tonycpsu at 1:52 PM on March 25, 2014 [3 favorites]
corb, you might find this article interesting. It's an editorial that attacks a few right wing Orthodox Jewish organizations for supporting Hobby Lobby. More here.
posted by zarq at 2:06 PM on March 25, 2014 [1 favorite]
posted by zarq at 2:06 PM on March 25, 2014 [1 favorite]
The owners of Hobby Lobby may or may not be "true believers", but the money is coming from the Becket Fund, as Blazecock points out, and that's what makes them different from your garden variety spittle-flecked morons. They are well-funded morons.
Here it is from the horse's mouth:
From PoliticalResearch.org, regarding the Becket Fund:
However, the KoC funding — while disturbing, if you weren't already aware of the gross nature of the KoC — represents only about $1.5M over several years, for an organization with a budget exceeding $2M annually. There are a lot of other donors. The Fund's own Donors page is hilariously sparse, though. Almost as though perhaps people are reluctant to be recognized as giving money to them...
posted by Kadin2048 at 2:07 PM on March 25, 2014 [6 favorites]
Here it is from the horse's mouth:
The Becket Fund for Religious Liberty has represented the Green family, and its family business, Hobby Lobby, since 2012.Boldface emphasis is mine.
Becket Fund lawyers won Hobby Lobby’s case before the U.S. Tenth Circuit Court of Appeals. The ruling became the first in a string of decisive victories for religious liberty. Those cases, like Hobby Lobby’s, challenge a federal regulation that forces family business owners to choose between their own deeply held beliefs and a government mandate. After the Becket Fund’s victory on behalf of the Green family, the government appealed the case to the Supreme Court. The Becket Fund and the Greens agreed that the highest court in the nation should rule on whether owners have the right to conduct their businesses according to their sincerely held religious convictions.
The Becket Fund is a non-profit, public interest law firm that protects the free expression of all faiths.
The Becket Fund represents its clients on a pro bono basis — that is, they provide their services free of charge. They are sustained by the generosity of their donors.
From PoliticalResearch.org, regarding the Becket Fund:
[T]he Becket Fund can be viewed as a virtual arm of the Roman Catholic Church. Financially, the ties are clear and deep, as are the personal religious affiliations of key Becket leaders. [...] Given the Catholic-heavy nature of the organization, it is no surprise that the Becket Fund is the second largest recipient of political funding from the Knights of Columbus, the world’s largest Catholic fraternal organizationI think the "arm of the Roman Catholic Church" is a bit of an exaggeration, since they don't seem to be directly controlled in any way by the Church. In some ways that's worse than if they were, because it means they can feel free to act in ways that the actual Church in Rome wouldn't even tolerate, and they're not likely to be responsive to any shift in official stance by the new Pope. However, the important distinction (for whatever it's worth) is that they are Catholic, and not one of the usual Evangelical frother suspects.
However, the KoC funding — while disturbing, if you weren't already aware of the gross nature of the KoC — represents only about $1.5M over several years, for an organization with a budget exceeding $2M annually. There are a lot of other donors. The Fund's own Donors page is hilariously sparse, though. Almost as though perhaps people are reluctant to be recognized as giving money to them...
posted by Kadin2048 at 2:07 PM on March 25, 2014 [6 favorites]
"undoubtedly it's a fetus thing.. Know instantly if you're pregnant so you can stop drinking right away and preserve the heath of the 'unborn'.
coming soon, all women of childbearing age must prove they are not pregnant before being served alcohol."
Well, we could solve that by having a class of surrogate gestaters, call 'em "handmaids" or something, then we wouldn't have to worry about wives having a drink or two with their husband's permission.
posted by klangklangston at 2:12 PM on March 25, 2014 [26 favorites]
coming soon, all women of childbearing age must prove they are not pregnant before being served alcohol."
Well, we could solve that by having a class of surrogate gestaters, call 'em "handmaids" or something, then we wouldn't have to worry about wives having a drink or two with their husband's permission.
posted by klangklangston at 2:12 PM on March 25, 2014 [26 favorites]
Hobby Lobby's 2011 revenues were over 2 billion dollars. I think they'd be well-funded even if they weren't represented pro bono.
Edited: over 3 billion in 2013.
posted by ArbitraryAndCapricious at 2:14 PM on March 25, 2014
Edited: over 3 billion in 2013.
posted by ArbitraryAndCapricious at 2:14 PM on March 25, 2014
However, the important distinction (for whatever it's worth) is that they are Catholic, and not one of the usual Evangelical frother suspects.
Board members of The Becket Fund share connections with NOM and Opus Dei, which in particular has a fairly extremist history of past friendships with notable Spanish, Hungarian and Irish fascists, and current connections with personalities of their own extremist variety, like former Senator Rick Santorum and Supreme Court judges Antonin Scalia and Samuel Alito.
posted by Blazecock Pileon at 2:20 PM on March 25, 2014 [2 favorites]
Board members of The Becket Fund share connections with NOM and Opus Dei, which in particular has a fairly extremist history of past friendships with notable Spanish, Hungarian and Irish fascists, and current connections with personalities of their own extremist variety, like former Senator Rick Santorum and Supreme Court judges Antonin Scalia and Samuel Alito.
posted by Blazecock Pileon at 2:20 PM on March 25, 2014 [2 favorites]
Opus Dei, which in particular has a fairly extremist history of past friendships with notable Spanish, Hungarian and Irish fascists...
The Catholic Al Qaeda.
posted by Pudhoho at 2:55 PM on March 25, 2014 [1 favorite]
The Catholic Al Qaeda.
posted by Pudhoho at 2:55 PM on March 25, 2014 [1 favorite]
I just can't help feeling that if Hobby Lobby had a "sincerely held" belief that funding abortion was bad, they wouldn't buy 90% of their shit from China. But I guess high profits matter more than CHINESE women's uteruses.
The other thing that infuriates me is that it's not like Hobby Lobby's owners can't OPT OUT of owning a business. Like, there are people who object to taxes funding wars who are careful to have so little income that they don't pay income taxes. Literally nobody is making THEM pay for birth control; their BUSINESS is being required to comply with the law. I believe people should have a right to make a living without violating their consciences, but owning a $3bn business is not the only job available to them! (Which, of course, it may be to their low-wage employees.)
posted by Eyebrows McGee at 3:05 PM on March 25, 2014 [24 favorites]
The other thing that infuriates me is that it's not like Hobby Lobby's owners can't OPT OUT of owning a business. Like, there are people who object to taxes funding wars who are careful to have so little income that they don't pay income taxes. Literally nobody is making THEM pay for birth control; their BUSINESS is being required to comply with the law. I believe people should have a right to make a living without violating their consciences, but owning a $3bn business is not the only job available to them! (Which, of course, it may be to their low-wage employees.)
posted by Eyebrows McGee at 3:05 PM on March 25, 2014 [24 favorites]
My understanding of the first amendment protections for religious freedom are that they're a right to mind your own business, and meant to protect against these kinds of situations.
I think the places this can lead are all bad and most of them have been covered, but what occurs to me right off is that this will become an opportunity for pregnancy discrimination, and also for employers not to deny access to birth control but to figure out a way to require it, and to gain access to other private information.
posted by bile and syntax at 4:28 PM on March 25, 2014 [1 favorite]
I think the places this can lead are all bad and most of them have been covered, but what occurs to me right off is that this will become an opportunity for pregnancy discrimination, and also for employers not to deny access to birth control but to figure out a way to require it, and to gain access to other private information.
posted by bile and syntax at 4:28 PM on March 25, 2014 [1 favorite]
From the oral argument, Breyer seems sympathetic to the plaintiffs.
posted by jpe at 4:32 PM on March 25, 2014
posted by jpe at 4:32 PM on March 25, 2014
The other thing that infuriates me is that it's not like Hobby Lobby's owners can't OPT OUT of owning a business.
You can't predicate a widely available program or benefit on forfeiting rights (see eg drug testing for welfare)
posted by jpe at 4:33 PM on March 25, 2014
You can't predicate a widely available program or benefit on forfeiting rights (see eg drug testing for welfare)
posted by jpe at 4:33 PM on March 25, 2014
You can't predicate a widely available program or benefit on forfeiting rights (see eg drug testing for welfare)
By this argument, child labor should be legal. I'm sure that caused a few businesses to close up shop.
posted by GenjiandProust at 4:35 PM on March 25, 2014
By this argument, child labor should be legal. I'm sure that caused a few businesses to close up shop.
posted by GenjiandProust at 4:35 PM on March 25, 2014
Llama-Lime: I find the very basics of this confusing. Is it my religious freedom to force my employees not to buy alcohol with the dollars I give them? They can do all sorts of disagreeable things with their dollars, should I be able to pay them in special morality dollars that can only be spent on the things I like?
The difference, which someone may have pointed out, is that this is about Hobby Lobby providing certain health coverage. Specifically, "Hobby Lobby already covered 16 of the 20 methods of contraception mandated under the Affordable Care Act, but it didn’t cover Plan B One-Step, Ella (another brand of emergency contraception) and two forms of intrauterine devices" (copied from the OP). They're making the case that this is more direct support for something they are against, versus giving you money to do with as you wish.
posted by filthy light thief at 4:47 PM on March 25, 2014
The difference, which someone may have pointed out, is that this is about Hobby Lobby providing certain health coverage. Specifically, "Hobby Lobby already covered 16 of the 20 methods of contraception mandated under the Affordable Care Act, but it didn’t cover Plan B One-Step, Ella (another brand of emergency contraception) and two forms of intrauterine devices" (copied from the OP). They're making the case that this is more direct support for something they are against, versus giving you money to do with as you wish.
posted by filthy light thief at 4:47 PM on March 25, 2014
three blind mice: This is one of the bigest flaws in Obamacare. Instead of just trying to get some national consensus on universal health insurance, liberals had to insist on trotting out the most devisive hobby horse in American politics. This is a classic case of political overreach which will sabotage the entire project.
Obama won in 2008 and 2012. Both houses of Congress passed the law. The Supreme Court said it was constitutional. How much more consensus do you need?
Hobby Lobby's case is completely ridiculous. Your religious rights have nothing to do with what benefits your plan covers. No one is forcing anyone to take birth control. You might as well argue that taxes violate your religion because they pay for roads that lead to strip clubs.
posted by spaltavian at 5:04 PM on March 25, 2014 [10 favorites]
Obama won in 2008 and 2012. Both houses of Congress passed the law. The Supreme Court said it was constitutional. How much more consensus do you need?
Hobby Lobby's case is completely ridiculous. Your religious rights have nothing to do with what benefits your plan covers. No one is forcing anyone to take birth control. You might as well argue that taxes violate your religion because they pay for roads that lead to strip clubs.
posted by spaltavian at 5:04 PM on March 25, 2014 [10 favorites]
"The other thing that infuriates me is that it's not like Hobby Lobby's owners can't OPT OUT of owning a business. "
Having to opt out of owning a business is a substantial burden, though.
"By this argument, child labor should be legal. I'm sure that caused a few businesses to close up shop."
Religious freedoms get an explicit constitutional exemption from a lot of the other constraints the government would normally be able to put on them. If they were arguing this was their property or contract rights being violated, they would have been laughed out of court before they even filed.
posted by klangklangston at 5:07 PM on March 25, 2014
Having to opt out of owning a business is a substantial burden, though.
"By this argument, child labor should be legal. I'm sure that caused a few businesses to close up shop."
Religious freedoms get an explicit constitutional exemption from a lot of the other constraints the government would normally be able to put on them. If they were arguing this was their property or contract rights being violated, they would have been laughed out of court before they even filed.
posted by klangklangston at 5:07 PM on March 25, 2014
The difference, which someone may have pointed out, is that this is about Hobby Lobby providing certain health coverage. Specifically, "Hobby Lobby already covered 16 of the 20 methods of contraception mandated under the Affordable Care Act, but it didn’t cover Plan B One-Step, Ella (another brand of emergency contraception) and two forms of intrauterine devices" (copied from the OP). They're making the case that this is more direct support for something they are against, versus giving you money to do with as you wish.Ok, can you explain this difference a bit more? Because I don't understand the difference. In order to get just those 16 of 20 methods they had to negotiate some sort of special deals, in essence negotiating their own form of HobbyLobby health compensation. Additionally, they can't prevent their employees from buying UIDs with dollars, and if their employees were to buy IUDs with dollars it's 100% equivalent, to Hobby Lobby, as if they had spent dollars, as they are enabling the same exact action either way. I honestly don't understand how they could conceive of a difference. Sorry if I'm being obtuse, but please indulge me. What is the difference in the forms of compensation?
posted by Llama-Lime at 5:58 PM on March 25, 2014 [1 favorite]
IUDs aren't cheap. Pretending that this is just about Hobby Lobby's version of morals, maybe they're hoping some people won't get them if they're not covered by their insurance -- and they're right, some women won't.
posted by The corpse in the library at 6:02 PM on March 25, 2014 [1 favorite]
posted by The corpse in the library at 6:02 PM on March 25, 2014 [1 favorite]
The best part is, Hobby Lobby's insurance USED to cover these drugs. It wasn't until the public furor over their coverage being required that they dropped it.
posted by KathrynT at 6:12 PM on March 25, 2014 [2 favorites]
posted by KathrynT at 6:12 PM on March 25, 2014 [2 favorites]
You're right, on individual terms are pricy (though people can donate to Planned Parenthood you want them to be less of a burden!). In insurance terms, IUDs are a hell of a lot cheaper than babies, trust me I've been on the end of insurance companies jacking up our rates because of babies. (Which should not happen in the future due to obamacare, thankfully.) But how would these minor differences of inclination ever make a legal difference? That's the point I don't understand.
I should add that the biggest difference between providing health insurance and just giving the employees the cost of the health insurance is that individuals can't buy insurance at the same cost as their fraction of the companies cost of health insurance. Because buying power makes a hell of a difference in unfree markets like health insurance, and the per-person cost of acquiring a large client like a company with thousands of employees is minuscule to the cost of acquiring lots of companies with dozens of employees, due to the inherent complexity of health insurance and understanding the available options, which insurance companies have endeavored to make as complex as possible over the past few decades.
posted by Llama-Lime at 6:14 PM on March 25, 2014 [1 favorite]
I should add that the biggest difference between providing health insurance and just giving the employees the cost of the health insurance is that individuals can't buy insurance at the same cost as their fraction of the companies cost of health insurance. Because buying power makes a hell of a difference in unfree markets like health insurance, and the per-person cost of acquiring a large client like a company with thousands of employees is minuscule to the cost of acquiring lots of companies with dozens of employees, due to the inherent complexity of health insurance and understanding the available options, which insurance companies have endeavored to make as complex as possible over the past few decades.
posted by Llama-Lime at 6:14 PM on March 25, 2014 [1 favorite]
The very idea is ludicrous.
Ludicrous and deplorable ideas are quite popular at the moment, unfortunately. It's unfathomable what is taken seriously in the States at the moment.
posted by juiceCake at 7:28 PM on March 25, 2014 [1 favorite]
Ludicrous and deplorable ideas are quite popular at the moment, unfortunately. It's unfathomable what is taken seriously in the States at the moment.
posted by juiceCake at 7:28 PM on March 25, 2014 [1 favorite]
I am a Catholic and I won't shop at Hobby Lobby over this. But I had never heard of the Becket Group until I read BP's comment and snorted at his rather heavy-handed satire… And then discovered he is serious. *wince* Bleargh.
posted by wenestvedt at 7:55 PM on March 25, 2014
posted by wenestvedt at 7:55 PM on March 25, 2014
Well, we could solve that by having a class of surrogate gestaters, call 'em "handmaids" or something, then we wouldn't have to worry about wives having a drink or two with their husband's permission.
I was expecting you were going to suggest creating a class of surrogate drinkers instead.
posted by Dip Flash at 8:19 PM on March 25, 2014
I was expecting you were going to suggest creating a class of surrogate drinkers instead.
posted by Dip Flash at 8:19 PM on March 25, 2014
Maybe We Need to Revisit the Whole Secular-Humanism-As-Religion Thing
posted by tonycpsu at 8:32 PM on March 25, 2014 [2 favorites]
posted by tonycpsu at 8:32 PM on March 25, 2014 [2 favorites]
If the US loses to Hobby Lobby, maybe fighting fire with fire would work. It would be all that's left, anyway, maybe.
posted by Blazecock Pileon at 9:25 PM on March 25, 2014
posted by Blazecock Pileon at 9:25 PM on March 25, 2014
By this argument, child labor should be legal.
This shouldn't be a surprise to you, but there's no right to employ child labor.
posted by jpe at 4:41 AM on March 26, 2014
This shouldn't be a surprise to you, but there's no right to employ child labor.
posted by jpe at 4:41 AM on March 26, 2014
The best part is, Hobby Lobby's insurance USED to cover these drugs. It wasn't until the public furor over their coverage being required that they dropped it.
According to your link, they dropped them as soon as they learned they were included. That's supports HL's position rather than undercutting it (your first clue for that: it is detailed in HL's brief)
posted by jpe at 4:48 AM on March 26, 2014
According to your link, they dropped them as soon as they learned they were included. That's supports HL's position rather than undercutting it (your first clue for that: it is detailed in HL's brief)
posted by jpe at 4:48 AM on March 26, 2014
Out of curiosity, jpe, do you think that employers should get religious exemptions from employment laws that don't involve healthcare or sexuality? For instance, I know a small-business-owner who is a Mennonite and a very committed, religiously-motivated pacifist. He's a registered conscientious objector, so he has had to prove his deep pacifist ideals to a draft board. Should he be exempt from laws that say that employers have to give employees time off to serve in the reserves and national guard? I'm pretty sure that supporting his employees' training on how to kill people would be at least as galling to him as buying the morning-after pill would be to Hobby Lobby. How about taxes? Should he be allowed not to pay the portion of his small-business taxes that support violent activities? What if an explicitly-Christian company like Hobby Lobby decided that they only wanted to hire Christian employees and demanded an exception to employment discrimination laws? I can imagine that there would be places in the US where it would be pretty tough for a non-Christian to find a private-sector job if it were legal to ask people questions about religion at job interviews and take their answers into account when making hiring decisions.
posted by ArbitraryAndCapricious at 5:15 AM on March 26, 2014
posted by ArbitraryAndCapricious at 5:15 AM on March 26, 2014
Not that I was directly asked, but I think it's pretty clear that once you "Incorporate" a corporate entity, that entity and you are distinct 'persons' going forward. At that moment, the Artificial Legal Entity ( ALE ) is subject to the "regulation" of their "creator", specifically , The People via The Secretary of State in accepting the filing. ( "rights" come from Our Creator, US Declaration of Independence )
So, the 'religious objections' of the "Corporation" don't exist. Caveat Emptor and all that...
posted by mikelieman at 5:18 AM on March 26, 2014
So, the 'religious objections' of the "Corporation" don't exist. Caveat Emptor and all that...
posted by mikelieman at 5:18 AM on March 26, 2014
The distinction between corp and shareholder isn't terribly germane here, since the argument is statutory and turns on whether the corp is a person under the statute. And if we sharply divide the two, you can permit the state to, say, prohibit Muslim butchers from halal practices. Even the gvt solicitor backed off of that argument for precisely that reason.
re parade of horribles of religious discrimination: we have statutes in place to prevent that that supersede RFRA. Similarly, I don't see how a Mennonite's religion is burdened by his employees joinimg the military. If he were required to provide their weapons that would be a different story. (a hypo more in line with this case, incidentally)
posted by jpe at 6:22 AM on March 26, 2014
re parade of horribles of religious discrimination: we have statutes in place to prevent that that supersede RFRA. Similarly, I don't see how a Mennonite's religion is burdened by his employees joinimg the military. If he were required to provide their weapons that would be a different story. (a hypo more in line with this case, incidentally)
posted by jpe at 6:22 AM on March 26, 2014
BTW, I do think the state should win this case because I don't think the provision of health insurance is much of a burden. That doesn't mean that a lot of the arguments made in favor of the mandate aren't lousy arguments.
posted by jpe at 6:29 AM on March 26, 2014
posted by jpe at 6:29 AM on March 26, 2014
re parade of horribles of religious discrimination: we have statutes in place to prevent that that supersede RFRA.But what the court is ruling on here is whether corporations have a right to religious freedom that trumps statutes, right?
Similarly, I don't see how a Mennonite's religion is burdened by his employees joinimg the military.He's required to give his employees time off to attend military training. He's required to cover the costs of that, which could include overtime pay for the employees who are picking up the hours or the expense of hiring a temp. In practice, this is vastly more burdensome than paying for the morning-after pill. He's forced to economically subsidize the cost of his employee being trained to kill people, which he objects to on religious grounds.
But it's also very different, because it doesn't involve women having sex.
posted by ArbitraryAndCapricious at 6:38 AM on March 26, 2014 [10 favorites]
jpe: "since the argument is statutory and turns on whether the corp is a person under the statute."
Not really. There are a few issues to unpack here.
First off, neither Plan B nor IUD's are "abortifacients" as Hobby Lobby is erroneously claiming. "Their only connection to abortion is that they prevent the need for one." The ACA does not cover abortions of abortifacients. Their entire case is based on a misunderstanding of the ACA, a rejection of science and scientific studies as well as some outright stupidity over human biology and how both contraceptives actually work.
There's also the fact that Hobby Lobby is attempting to control their employees' earned benefits, dictate what medical care they can and cannot receive and also impose the religious beliefs of some of their shareholders and Directors over their employees. All of which are generally legal no-nos.
None of these problems would change if the corporation were to be recognized as a person.
posted by zarq at 6:42 AM on March 26, 2014 [9 favorites]
Not really. There are a few issues to unpack here.
First off, neither Plan B nor IUD's are "abortifacients" as Hobby Lobby is erroneously claiming. "Their only connection to abortion is that they prevent the need for one." The ACA does not cover abortions of abortifacients. Their entire case is based on a misunderstanding of the ACA, a rejection of science and scientific studies as well as some outright stupidity over human biology and how both contraceptives actually work.
There's also the fact that Hobby Lobby is attempting to control their employees' earned benefits, dictate what medical care they can and cannot receive and also impose the religious beliefs of some of their shareholders and Directors over their employees. All of which are generally legal no-nos.
None of these problems would change if the corporation were to be recognized as a person.
posted by zarq at 6:42 AM on March 26, 2014 [9 favorites]
But what the court is ruling on here is whether corporations have a right to religious freedom that trumps statutes, right?
I don't think many people expect the first amendment to play much of a part here. The real issue will be the statutory one: whether RFRA, the statute passed to overturn the Smith decision, applies here.
He's required to give his employees time off to attend military training.
That's a burden on his business interests, not his religious interests.
First off, neither Plan B nor IUD's are "abortifacients" as Hobby Lobby is erroneously claiming.
I don't really see how that impacts the legal analysis. Someone can have a sincerely held and stupid belief, but the only thing that really matters is whether it is, in fact, sincerely held.
All of which are generally legal no-nos.
Nah. Corps have always been able to determine the scope of their benefits packages.
posted by jpe at 7:38 AM on March 26, 2014
I don't think many people expect the first amendment to play much of a part here. The real issue will be the statutory one: whether RFRA, the statute passed to overturn the Smith decision, applies here.
He's required to give his employees time off to attend military training.
That's a burden on his business interests, not his religious interests.
First off, neither Plan B nor IUD's are "abortifacients" as Hobby Lobby is erroneously claiming.
I don't really see how that impacts the legal analysis. Someone can have a sincerely held and stupid belief, but the only thing that really matters is whether it is, in fact, sincerely held.
All of which are generally legal no-nos.
Nah. Corps have always been able to determine the scope of their benefits packages.
posted by jpe at 7:38 AM on March 26, 2014
jpe: " I don't really see how that impacts the legal analysis. Someone can have a sincerely held and stupid belief, but the only thing that really matters is whether it is, in fact, sincerely held."
They're asking to be given a religious exemption based on a clear, provably false assumption. That absolutely undermines their argument.
posted by zarq at 7:50 AM on March 26, 2014 [2 favorites]
They're asking to be given a religious exemption based on a clear, provably false assumption. That absolutely undermines their argument.
posted by zarq at 7:50 AM on March 26, 2014 [2 favorites]
zarq: They're asking to be given a religious exemption based on a clear, provably false assumption. That absolutely undermines their argument.
But not in a legal sense, since the court's already stated that it's not in a position to call the assumption "provably false." We're basically counting on Tony Kennedy coming down with a sudden case of judicial restraint. If you pray, please do, and if you don't, there's never been a better time to start.
posted by tonycpsu at 7:56 AM on March 26, 2014 [1 favorite]
But not in a legal sense, since the court's already stated that it's not in a position to call the assumption "provably false." We're basically counting on Tony Kennedy coming down with a sudden case of judicial restraint. If you pray, please do, and if you don't, there's never been a better time to start.
posted by tonycpsu at 7:56 AM on March 26, 2014 [1 favorite]
Corps have always been able to determine the scope of their benefits packages.
No they haven't. ERISA and HIPPA laws for decades have required that company health plans provide guaranteed issue to all, community rating, pregnancy and pre-existing condition inclusions. Pension plans are similarly constrained by law. Corporations can choose to offer or not offer health and pension plans, but if they do, corporations are certainly not free to determine the scope of benefits as they see fit.
posted by JackFlash at 7:58 AM on March 26, 2014 [7 favorites]
No they haven't. ERISA and HIPPA laws for decades have required that company health plans provide guaranteed issue to all, community rating, pregnancy and pre-existing condition inclusions. Pension plans are similarly constrained by law. Corporations can choose to offer or not offer health and pension plans, but if they do, corporations are certainly not free to determine the scope of benefits as they see fit.
posted by JackFlash at 7:58 AM on March 26, 2014 [7 favorites]
This shouldn't be a surprise to you, but there's no right to employ child labor.
Apparently if you have a "sincerely held religious belief" that children should be in the workforce, there is.
posted by dirigibleman at 8:10 AM on March 26, 2014 [3 favorites]
Apparently if you have a "sincerely held religious belief" that children should be in the workforce, there is.
posted by dirigibleman at 8:10 AM on March 26, 2014 [3 favorites]
Does your mutual fund have a religion? "[I]f a Supreme Court majority determines that corporations may have religious beliefs (for purposes of the Religious Freedom Restoration Act and/or the Free Exercise Clause of the First Amendment), it will be necessary to come up with a methodology for determining what a given corporation's religion is. If the Court decides that the religion of the shareholders (as opposed to that of its employees, for example) dictates the religion of the corporation, one would need to know who the shareholders are as of the particular point in time when the sincerity of the religious belief is being measured.
Of course this poses challenges in a world of high-frequency trading. But that would not be insurmountable as a practical matter; we do have record dates for other purposes. But it would make a mockery of religious beliefs if they can shift in fractions of a second. And, it becomes additionally complicated when the owners of shares are not real people, but instead institutional investors. About 70 percent of U.S. equities are owned by institutional investors (with mutual funds taking up a large slice).""
posted by T.D. Strange at 8:22 AM on March 26, 2014
Of course this poses challenges in a world of high-frequency trading. But that would not be insurmountable as a practical matter; we do have record dates for other purposes. But it would make a mockery of religious beliefs if they can shift in fractions of a second. And, it becomes additionally complicated when the owners of shares are not real people, but instead institutional investors. About 70 percent of U.S. equities are owned by institutional investors (with mutual funds taking up a large slice).""
posted by T.D. Strange at 8:22 AM on March 26, 2014
He's required to give his employees time off to attend military training.
That's a burden on his business interests, not his religious interests.
If someone's religious beliefs included pacifism then it is a burden on both, they are being obligated to directly fund an employee to engaging in training relating to violent endeavors.
Which is (sorta) actually not a bad analogy to the HL case, HL or it's owners are not, presumably, using the contraceptives in question, so you could argue the funding requirement is not a burden on their religious freedom, they are allowed to use or not use those contraceptives as they see fit. But, if this case breaks for HL, then the knock-on is that yes, employers can now seek all kinds of exemptions based on religious freedom. Including such things as allowing employee's time off to attend military training. I really hope the Justices think about the consequences of what they are about the rule on, because it could become a pretty head-achy precedent to set.
I've a sneaking suspicion Sotomayor was a particularly good puck for the SC as I think it is likely she is the great persuader behind the closed doors. It's too bad Robert's is so young as I'd like to her as Sotomayor as Chief Justice.
posted by edgeways at 9:14 AM on March 26, 2014 [4 favorites]
That's a burden on his business interests, not his religious interests.
If someone's religious beliefs included pacifism then it is a burden on both, they are being obligated to directly fund an employee to engaging in training relating to violent endeavors.
Which is (sorta) actually not a bad analogy to the HL case, HL or it's owners are not, presumably, using the contraceptives in question, so you could argue the funding requirement is not a burden on their religious freedom, they are allowed to use or not use those contraceptives as they see fit. But, if this case breaks for HL, then the knock-on is that yes, employers can now seek all kinds of exemptions based on religious freedom. Including such things as allowing employee's time off to attend military training. I really hope the Justices think about the consequences of what they are about the rule on, because it could become a pretty head-achy precedent to set.
I've a sneaking suspicion Sotomayor was a particularly good puck for the SC as I think it is likely she is the great persuader behind the closed doors. It's too bad Robert's is so young as I'd like to her as Sotomayor as Chief Justice.
posted by edgeways at 9:14 AM on March 26, 2014 [4 favorites]
Scott Lemieux: How to Read RFRA
The better question is whether, assuming arguendo that there is a religious conflict, whether the burden placed on these beliefs is sufficient to trigger heightened scrutiny. The free exercise framework established by RFRA has two parts. The first states that "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." This establishes a threshold test;litigants must show that their exercise of religion has been "substantially burdened." If this threshold is passed, the burden switches to the government to show that the law is in "furtherance of a compelling government interest" and "is the least restrictive means of furthering that compelling governmental interest." Many of you will recognize this as analogous to the strict scrutiny test the federal courts use to evaluate racial classifications under the Fifth and Fourteenth Amendments. Applied properly, this is an enormously difficult test to pass.posted by tonycpsu at 11:27 AM on March 26, 2014
As you can see from Paul Clements at the oral argument, the strategy of the litigants has been to for all practical purposes read the threshold test out of RFRA. Under Clement's theory, almost any bare assertion of any degree of conflict with religious practice is sufficiently "substantial" to trigger strict scrutiny.
Humm. So that would seem to create a number of possibilities:
The Good: The Court finds that a requirement for a business's health insurance to cover contraception is not a substantial burden on the business owner's religion, period. End of story. That seems like the best outcome that could be hoped for, if you like the ACA.
The Bad: The Court finds that providing contraception coverage, even in the very indirect manner of a group health insurance plan provided to employees by a corporation, is a 'substantial burden' on the company owners' religion. This opens the door to any number of challenges not only to the contraception provision of the ACA (which only dumbass religious nutters oppose; rational actors don't, because it actually lowers costs), but to employer health-insurance coverage requirements more generally — the Christian Scientist scenario. It also raises some very weird questions with regard to publicly traded companies or companies where ownership isn't restricted to a small number of people with similar religious beliefs.
The Ugly: The Court does some sort of weird baby-splitting where they find that paying for contraception is a substantial burden, but then they manage to meet the compelling-interest and least-restrictive-means tests in this particular case, probably on a narrow margin. I'm not sure what the downstream effect of that would be.
posted by Kadin2048 at 12:51 PM on March 26, 2014 [1 favorite]
The Good: The Court finds that a requirement for a business's health insurance to cover contraception is not a substantial burden on the business owner's religion, period. End of story. That seems like the best outcome that could be hoped for, if you like the ACA.
The Bad: The Court finds that providing contraception coverage, even in the very indirect manner of a group health insurance plan provided to employees by a corporation, is a 'substantial burden' on the company owners' religion. This opens the door to any number of challenges not only to the contraception provision of the ACA (which only dumbass religious nutters oppose; rational actors don't, because it actually lowers costs), but to employer health-insurance coverage requirements more generally — the Christian Scientist scenario. It also raises some very weird questions with regard to publicly traded companies or companies where ownership isn't restricted to a small number of people with similar religious beliefs.
The Ugly: The Court does some sort of weird baby-splitting where they find that paying for contraception is a substantial burden, but then they manage to meet the compelling-interest and least-restrictive-means tests in this particular case, probably on a narrow margin. I'm not sure what the downstream effect of that would be.
posted by Kadin2048 at 12:51 PM on March 26, 2014 [1 favorite]
I'll be interested to see how the Court goes on this one. I see a bunch of jumping off points they could take.
Although I have not looked at this issue exhaustively, the statutory issue seems relatively straight-forward.
On the very first page, in the very first section of the 2,000 page United States Code is this:
1 U.S.C. § 1
So we go later in the Code to RFRA's operative provision:
42 U.S. Code § 2000bb–1
As such, I think they likely conclude the RFRA applies to corporations. But then we apply the test: can the government show a compelling interest and a least restrictive means to further it to burden the corporation? I think the compelling interest would be found. The least restrictive means kind of deals with the question "couldn't the government pay for it/subsidize this issue directly". That may be where Roberts side goes: this isn't the least restrictive means. However, I could also see that being a tricky argument for Roberts to take. Given his majority opinion in the ACA case that ACA was a in effect a tax, I wonder if he can change direction and imply that the optional tax is too restrictive in this instance. My early guess is that a 6+ majority of the Court believes the RFRA applies, a majority 6+ concludes that the government has a compelling interest in the burdens at issue, and a 5-6 majority offers some opinion wrestling with "least restrictive" and concluding the burden is not much of one.
This is a very interesting issue, and I wish I paid closer attention to it. I'm going to read the briefs and look forward to seeing what happens here.
posted by dios at 1:45 PM on March 26, 2014
Although I have not looked at this issue exhaustively, the statutory issue seems relatively straight-forward.
On the very first page, in the very first section of the 2,000 page United States Code is this:
1 U.S.C. § 1
In determining the meaning of any Act of Congress, unless the context indicates otherwise—In other words, we say at the very beginning of the US Code, if you see the word "person" you can substitute "corporation" unless the context indicates otherwise.
...
the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;
So we go later in the Code to RFRA's operative provision:
42 U.S. Code § 2000bb–1
(a) In generalThe definition section of this chapter 21C does not change or limit the definition of person, so we default to general definition of person. And applying section 1's definition of person to include corporation, we can read the RFRA this way:
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(c) Judicial relief
A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
(a) In generalSo, as a matter of textual analysis, it seems the analysis ought to be that RFRA applies to corporations. Of course, section 1 also says not to read that if the context suggests otherwise. Is there anything in the context of the RFRA that suggests it ought not apply to corporations? A reasonable argument would be the context suggests otherwise because the RFRA is dealing with constitutional rights, and the Constitution does not contain the same definition of person as the US Code. However, there is about 150 years of Supreme Court precedent which says that corporations of people are afforded the same constitutional protections as individuals. And that law was certainly known to the drafters of these statutes who elected not to specify otherwise. As such, one has to conclude there was no intention to apply a stricter definition of persons to include only individuals. And one has to go against that 150 years of precedent. While some of the Justices would probably rule differently if the matter was one of first impression, I doubt seeing any traction for the majority to go that route.
Government shall not substantially burden a corporation’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a corporation’s exercise of religion only if it demonstrates that application of the burden to the corporation—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(c) Judicial relief
A corporation whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
As such, I think they likely conclude the RFRA applies to corporations. But then we apply the test: can the government show a compelling interest and a least restrictive means to further it to burden the corporation? I think the compelling interest would be found. The least restrictive means kind of deals with the question "couldn't the government pay for it/subsidize this issue directly". That may be where Roberts side goes: this isn't the least restrictive means. However, I could also see that being a tricky argument for Roberts to take. Given his majority opinion in the ACA case that ACA was a in effect a tax, I wonder if he can change direction and imply that the optional tax is too restrictive in this instance. My early guess is that a 6+ majority of the Court believes the RFRA applies, a majority 6+ concludes that the government has a compelling interest in the burdens at issue, and a 5-6 majority offers some opinion wrestling with "least restrictive" and concluding the burden is not much of one.
This is a very interesting issue, and I wish I paid closer attention to it. I'm going to read the briefs and look forward to seeing what happens here.
posted by dios at 1:45 PM on March 26, 2014
The interesting question isn't whether a corporation is "a person" for purposes of RFRA, so much as whether the concept of "exercise of religion" can rationally apply to it. Assault laws don't explicitly exclude corporations from their definition of "person," but they still don't apply, because you can't punch or kick a corporation any more than you can shake its hand -- or, for that matter, baptize it.
posted by Holy Zarquon's Singing Fish at 1:59 PM on March 26, 2014 [6 favorites]
posted by Holy Zarquon's Singing Fish at 1:59 PM on March 26, 2014 [6 favorites]
... or throw it in jail.
posted by edgeways at 2:35 PM on March 26, 2014 [2 favorites]
posted by edgeways at 2:35 PM on March 26, 2014 [2 favorites]
unless the context indicates otherwise
I think when we're talking about "Rights" which come from "Our Creator" ( see the US Declaration of Independence) the context is quite clear that "Artificial Legal Entities" are excluded and that they only have the privileges granted by The People at its creation by the Secretary of State.
posted by mikelieman at 2:35 PM on March 26, 2014
I think when we're talking about "Rights" which come from "Our Creator" ( see the US Declaration of Independence) the context is quite clear that "Artificial Legal Entities" are excluded and that they only have the privileges granted by The People at its creation by the Secretary of State.
posted by mikelieman at 2:35 PM on March 26, 2014
"Is there anything in the context of the RFRA that suggests it ought not apply to corporations?"
Besides the obvious that a corporation can't actually hold religious belief? It seems like there's a fairly substantial difference between the Citizens United holding that was based on an underlying individual right to associate and speak through corporations with the argument that a corporation can hold religious beliefs — when people congregate to share religious beliefs, we call that a church. Only the most Scientologist theologian can support a corporate faith.
posted by klangklangston at 2:37 PM on March 26, 2014 [3 favorites]
Besides the obvious that a corporation can't actually hold religious belief? It seems like there's a fairly substantial difference between the Citizens United holding that was based on an underlying individual right to associate and speak through corporations with the argument that a corporation can hold religious beliefs — when people congregate to share religious beliefs, we call that a church. Only the most Scientologist theologian can support a corporate faith.
posted by klangklangston at 2:37 PM on March 26, 2014 [3 favorites]
Apparently if you have a "sincerely held religious belief" that children should be in the workforce, there is.
Leviticus and Peter say get 'er done.
posted by Blazecock Pileon at 2:59 PM on March 26, 2014 [1 favorite]
Leviticus and Peter say get 'er done.
posted by Blazecock Pileon at 2:59 PM on March 26, 2014 [1 favorite]
How do you determine if a corporation sincerely holds a religious belief? Do you check the corporation's baptismal records? Subpoena the corporation's church attendance record? Get other corporations who attend the same church to give testimony about the deep convictions held by the corporations in question?
posted by KathrynT at 3:06 PM on March 26, 2014 [4 favorites]
posted by KathrynT at 3:06 PM on March 26, 2014 [4 favorites]
That's not correct. The Supreme Court has said for 150 years that corporations enjoy the same constitutional protections as individuals. And that fact was known by the Congress who passed the RFRA. So, as a matter of interpretative principles, you have to assume the Legislature was aware of the law when it wrote the statute. And, such as the clear statement rule requires, you have to assume that if it intended to change the law as it was at the time of enactment, it needed to clearly state that. There is nothing in the text of the statute that indicates the Legislature intended for the definition of person to be different than it is every other context. The fact that it addresses constitutional rights is not an indication because for 150 years we have said that corporations enjoy constitutional protections.
So going round and round about the nature of "rights" and from whence they come is not particularly helpful. From a legal perspective, the issue is established that corporations enjoy the same constitutional protections as individuals.
Nor is there anything inconsistent with religion and a corporation. A corporation is just a group of people. A group of people can all be of a particular religion with religious principles. Say you make a corporation of Bendictine Monks who want to create and sell Bibles; that is reasonable to understand. That doesn't make the corporation a church (though there may be reasons for that being a church would be wise).
I understand the idea of the corporate fiction. (I spend large portions of time trying to pierce corporate veils for liability purposes; I get it!) But the law is really established in this regard. I see it exceedingly unlikely that any of the judges would conclude that the RFRA does not apply to corporation due to the statutory language and stare decisis.
posted by dios at 3:09 PM on March 26, 2014
So going round and round about the nature of "rights" and from whence they come is not particularly helpful. From a legal perspective, the issue is established that corporations enjoy the same constitutional protections as individuals.
Nor is there anything inconsistent with religion and a corporation. A corporation is just a group of people. A group of people can all be of a particular religion with religious principles. Say you make a corporation of Bendictine Monks who want to create and sell Bibles; that is reasonable to understand. That doesn't make the corporation a church (though there may be reasons for that being a church would be wise).
I understand the idea of the corporate fiction. (I spend large portions of time trying to pierce corporate veils for liability purposes; I get it!) But the law is really established in this regard. I see it exceedingly unlikely that any of the judges would conclude that the RFRA does not apply to corporation due to the statutory language and stare decisis.
posted by dios at 3:09 PM on March 26, 2014
Sorry for not being clearer on who I was addressing. I think my comment responded to a couple of different threads there.
But one thing I would add to Holy Zarquon: you seem to imply criminal laws like assault do not apply to corporations. In fact, corporations can violate criminal laws and be criminally punished. Now penal codes are state based, so maybe not all states are the same, but I can tell you in Texas that a corporations can be held criminally responsible for assault, murder, rape or any other crime an individual commits. The definition of person in the Penal Code specifically says "'Person' means an individual, corporation, or association." Moreover there is a specific provision (7.022) that expressly states that a corporation can be responsible for any violation of the Penal Code. Now, the issue that arises is one of agency and ratification by the corporation, but the reality is that you could charge a corporation with murder or assault (As is obvious, there is a quandary when you talk about the punishment as you cannot incarcerate an entity, but there are other criminal punishments).
And the reason for this is because in practically every legal context corporations are treated the same as individuals. And to be frank, until I started seeing bumper stickers/protest signs after Citizens United, I don't recall much of an issue ever being made of that fact (but I may be forgetting something).
posted by dios at 3:23 PM on March 26, 2014
But one thing I would add to Holy Zarquon: you seem to imply criminal laws like assault do not apply to corporations. In fact, corporations can violate criminal laws and be criminally punished. Now penal codes are state based, so maybe not all states are the same, but I can tell you in Texas that a corporations can be held criminally responsible for assault, murder, rape or any other crime an individual commits. The definition of person in the Penal Code specifically says "'Person' means an individual, corporation, or association." Moreover there is a specific provision (7.022) that expressly states that a corporation can be responsible for any violation of the Penal Code. Now, the issue that arises is one of agency and ratification by the corporation, but the reality is that you could charge a corporation with murder or assault (As is obvious, there is a quandary when you talk about the punishment as you cannot incarcerate an entity, but there are other criminal punishments).
And the reason for this is because in practically every legal context corporations are treated the same as individuals. And to be frank, until I started seeing bumper stickers/protest signs after Citizens United, I don't recall much of an issue ever being made of that fact (but I may be forgetting something).
posted by dios at 3:23 PM on March 26, 2014
I'm saying a corporation can't be a victim of assault, or rape, or vehicular homicide, not because the statute excludes corporate persons but because it lacks a body to injure. Similarly, opponents of Hobby Lobby argue that corporations also lack a religious faith that can be burdened.
posted by Holy Zarquon's Singing Fish at 3:47 PM on March 26, 2014
posted by Holy Zarquon's Singing Fish at 3:47 PM on March 26, 2014
And the reason for this is because in practically every legal context corporations are treated the same as individuals. And to be frank, until I started seeing bumper stickers/protest signs after Citizens United, I don't recall much of an issue ever being made of that fact (but I may be forgetting something).The Corporation (2003). That's when I first remember people talking about it.
posted by ArbitraryAndCapricious at 3:47 PM on March 26, 2014
That's not correct. The Supreme Court has said for 150 years that corporations enjoy the same constitutional protections as individuals
How long did it take them to fix Dred Scott v. Sandford, again?
posted by mikelieman at 4:00 PM on March 26, 2014
How long did it take them to fix Dred Scott v. Sandford, again?
posted by mikelieman at 4:00 PM on March 26, 2014
"That's not correct. The Supreme Court has said for 150 years that corporations enjoy the same constitutional protections as individuals."
Sort of, and I'm a little surprised to see you being so fast and loose on this — as I noted, Citizens United didn't base their decision on the corporate right, but rather the underlying individual rights. And plenty of things that are legal for private citizens to do are illegal for corporations to do, and even more are tortious. Commercial speech is undoubtably less free than political speech, for example. Or, Northwestern Nat Life Ins. Co. v. Riggs, which has direct bearing on child labor and minimum wage laws. On another point, the court hasn't held for 150 years that corporations enjoy the same rights — the legal right to make political contributions for corporations was only recognized in 1978, a year before I was born and I'm not 149.
"There is nothing in the text of the statute that indicates the Legislature intended for the definition of person to be different than it is every other context."
Except, again, there's a separate organizational structure for "religious organizations," and to hold that an organization not so constituted holds religious ideals or is a vessel for expressing those views is absurd.
"Nor is there anything inconsistent with religion and a corporation. A corporation is just a group of people. A group of people can all be of a particular religion with religious principles. Say you make a corporation of Bendictine Monks who want to create and sell Bibles; that is reasonable to understand. That doesn't make the corporation a church (though there may be reasons for that being a church would be wise)."
First off, while a group of people may all be of a religious principle and form a business, that does not mean that the corporate person is of that religion. You're begging the question again. If they are explicitly a religious corporation, they must be explicitly a religious corporation. Secondly, that doesn't comport with the explicit carve-outs for religious organizations that explicitly distinguish them from other organizations, e.g. the Hatch amendment to the ADA. There's a long history of religious corporation law, and Hobby Lobby is trying to do an end-run around that in order to assert novel rights.
"And the reason for this is because in practically every legal context corporations are treated the same as individuals. And to be frank, until I started seeing bumper stickers/protest signs after Citizens United, I don't recall much of an issue ever being made of that fact (but I may be forgetting something)."
Uh, it's actually been a long-standing bugaboo of liberals as well as many on what I'd term the fringe or populist right. For the fringe right, you most frequently see it incorporated into their Freeholder rhetoric.
posted by klangklangston at 4:02 PM on March 26, 2014 [5 favorites]
Sort of, and I'm a little surprised to see you being so fast and loose on this — as I noted, Citizens United didn't base their decision on the corporate right, but rather the underlying individual rights. And plenty of things that are legal for private citizens to do are illegal for corporations to do, and even more are tortious. Commercial speech is undoubtably less free than political speech, for example. Or, Northwestern Nat Life Ins. Co. v. Riggs, which has direct bearing on child labor and minimum wage laws. On another point, the court hasn't held for 150 years that corporations enjoy the same rights — the legal right to make political contributions for corporations was only recognized in 1978, a year before I was born and I'm not 149.
"There is nothing in the text of the statute that indicates the Legislature intended for the definition of person to be different than it is every other context."
Except, again, there's a separate organizational structure for "religious organizations," and to hold that an organization not so constituted holds religious ideals or is a vessel for expressing those views is absurd.
"Nor is there anything inconsistent with religion and a corporation. A corporation is just a group of people. A group of people can all be of a particular religion with religious principles. Say you make a corporation of Bendictine Monks who want to create and sell Bibles; that is reasonable to understand. That doesn't make the corporation a church (though there may be reasons for that being a church would be wise)."
First off, while a group of people may all be of a religious principle and form a business, that does not mean that the corporate person is of that religion. You're begging the question again. If they are explicitly a religious corporation, they must be explicitly a religious corporation. Secondly, that doesn't comport with the explicit carve-outs for religious organizations that explicitly distinguish them from other organizations, e.g. the Hatch amendment to the ADA. There's a long history of religious corporation law, and Hobby Lobby is trying to do an end-run around that in order to assert novel rights.
"And the reason for this is because in practically every legal context corporations are treated the same as individuals. And to be frank, until I started seeing bumper stickers/protest signs after Citizens United, I don't recall much of an issue ever being made of that fact (but I may be forgetting something)."
Uh, it's actually been a long-standing bugaboo of liberals as well as many on what I'd term the fringe or populist right. For the fringe right, you most frequently see it incorporated into their Freeholder rhetoric.
posted by klangklangston at 4:02 PM on March 26, 2014 [5 favorites]
That's not correct. The Supreme Court has said for 150 years that corporations enjoy the same constitutional protections as individuals. And that fact was known by the Congress who passed the RFRA. So, as a matter of interpretative principles, you have to assume the Legislature was aware of the law when it wrote the statute...So going round and round about the nature of "rights" and from whence they come is not particularly helpful. From a legal perspective, the issue is established that corporations enjoy the same constitutional protections as individuals.
I'm not a lawyer, so perhaps my take on this is way off, but this seems to leave aside a potentially important point. Corporations may enjoy the same protections, but it doesn't necessarily follow that they have the same capacities. A person can exercise religion, but a group can't: it's composed of people engaging in religious exercise together, sure, but the group itself is merely a way of referring to people, human beings. Groups don't have volition or agency, so they can't do things, except in the sense that their actions supervene entirely on the intentionality of members. So when we say that Citibank missed its earnings target this quarter or that a library bought a new collection, we mean that the decision-makers in charge instigated those events in their capacity as officials, but not in the sense that Citibank can feel bad about messing up or that the library can, as an institution, have a belief about the value of the new collection, say. Grouping people together into organizations doesn't somehow create entities capable of volition, belief, conviction, intentionality, or any qualia separate from those of its constituent members.
Nor is there anything inconsistent with religion and a corporation. A corporation is just a group of people. A group of people can all be of a particular religion with religious principles. Say you make a corporation of Bendictine Monks who want to create and sell Bibles; that is reasonable to understand. That doesn't make the corporation a church (though there may be reasons for that being a church would be wise).
There's nothing inconsistent in the sense that the two terms aren't antonyms, I guess, but what's written here doesn't seem to address the question of whether or not it makes sense to claim that a corporation can, itself, exercise religion. Even churches or religious organizations don't, themselves, exercise religion, their members do.
posted by clockzero at 4:07 PM on March 26, 2014 [1 favorite]
I'm not a lawyer, so perhaps my take on this is way off, but this seems to leave aside a potentially important point. Corporations may enjoy the same protections, but it doesn't necessarily follow that they have the same capacities. A person can exercise religion, but a group can't: it's composed of people engaging in religious exercise together, sure, but the group itself is merely a way of referring to people, human beings. Groups don't have volition or agency, so they can't do things, except in the sense that their actions supervene entirely on the intentionality of members. So when we say that Citibank missed its earnings target this quarter or that a library bought a new collection, we mean that the decision-makers in charge instigated those events in their capacity as officials, but not in the sense that Citibank can feel bad about messing up or that the library can, as an institution, have a belief about the value of the new collection, say. Grouping people together into organizations doesn't somehow create entities capable of volition, belief, conviction, intentionality, or any qualia separate from those of its constituent members.
Nor is there anything inconsistent with religion and a corporation. A corporation is just a group of people. A group of people can all be of a particular religion with religious principles. Say you make a corporation of Bendictine Monks who want to create and sell Bibles; that is reasonable to understand. That doesn't make the corporation a church (though there may be reasons for that being a church would be wise).
There's nothing inconsistent in the sense that the two terms aren't antonyms, I guess, but what's written here doesn't seem to address the question of whether or not it makes sense to claim that a corporation can, itself, exercise religion. Even churches or religious organizations don't, themselves, exercise religion, their members do.
posted by clockzero at 4:07 PM on March 26, 2014 [1 favorite]
I think that the Hobby Lobby family, the Greens, would have a case, maybe, if they had cut payroll checks out of their own personal bank accounts and not the corporation's.
posted by mikelieman at 4:16 PM on March 26, 2014
posted by mikelieman at 4:16 PM on March 26, 2014
I think that the Hobby Lobby family, the Greens, would have a case, maybe, if they had cut payroll checks out of their own personal bank accounts and not the corporation's.
Then they wouldn't have a company, though.
posted by clockzero at 4:58 PM on March 26, 2014
Then they wouldn't have a company, though.
posted by clockzero at 4:58 PM on March 26, 2014
Then they wouldn't have a company, though.
I'm not seeing the downside here. If it's THEIR OWN PERSONAL ASSET, they can call the tune however they want. If they want to take advantage of some perceived benefit which they believe outweighs the liabilities involved in asking for an artificial legal entity to be created by The People, then again -- caveat emptor, and no sympathy or tears from me if you get burned by your own lack of due diligence.
posted by mikelieman at 6:20 PM on March 26, 2014 [2 favorites]
I'm not seeing the downside here. If it's THEIR OWN PERSONAL ASSET, they can call the tune however they want. If they want to take advantage of some perceived benefit which they believe outweighs the liabilities involved in asking for an artificial legal entity to be created by The People, then again -- caveat emptor, and no sympathy or tears from me if you get burned by your own lack of due diligence.
posted by mikelieman at 6:20 PM on March 26, 2014 [2 favorites]
Then they wouldn't have a company, though.
Sure they would. It would just be a sole proprietorship owned by Mr. Green.
posted by ROU_Xenophobe at 6:46 PM on March 26, 2014
Sure they would. It would just be a sole proprietorship owned by Mr. Green.
posted by ROU_Xenophobe at 6:46 PM on March 26, 2014
It's more that it's nigh impossible for a layman to believe that a principled judge could ever agree that Hobby Lobby, which is a legally distinct person from the Greens, could have religious beliefs. To even have the possibility of a case, the Greens would have had to abolish any distinction between themselves and Hobby Lobby so they could credibly claim that their beliefs are its beliefs.
posted by ROU_Xenophobe at 8:53 PM on March 26, 2014 [3 favorites]
posted by ROU_Xenophobe at 8:53 PM on March 26, 2014 [3 favorites]
Dahlia Lithwick: Is the Contraception Mandate Doomed? It sure looks that way after the Hobby Lobby argument.
posted by homunculus at 9:51 PM on March 26, 2014 [4 favorites]
posted by homunculus at 9:51 PM on March 26, 2014 [4 favorites]
How would that give them a case, though?
It they, as individuals, aren't hiding behind a corporate veil, their argument isn't totally outrageous. If they were personally accepting total liability, then their claims of religious infringement -- if they were factually sustained ( which they aren't ) might be reasonable.
Ok, it wouldn't give them a case because they're still factually incorrect, but it would remove the whole confusing corporate personhood intersection.
posted by mikelieman at 3:39 AM on March 27, 2014
It they, as individuals, aren't hiding behind a corporate veil, their argument isn't totally outrageous. If they were personally accepting total liability, then their claims of religious infringement -- if they were factually sustained ( which they aren't ) might be reasonable.
Ok, it wouldn't give them a case because they're still factually incorrect, but it would remove the whole confusing corporate personhood intersection.
posted by mikelieman at 3:39 AM on March 27, 2014
It they, as individuals, aren't hiding behind a corporate veil, their argument isn't totally outrageous
I still wouldn't buy it. That's extending "excercise of religion" to include what someone else does with money that you give them. Their argument is just an extended "money is speech" argument; now money is apparently prayer. I mean, why can't your boss say you can't spend your paycheck on alcohol, or refuse to have anti-slip mats in the shop if it's against his beliefs? Because in any other context, we would not accept that someone's religions right is infiringed by workplace standards. Why is women's health any different?
Freedom of religion is a private, individual right. It has no economic dimension, which is why religious organizations are specifically exempted from most taxation. For-profit concerns have lost any such shelter.
posted by spaltavian at 5:59 AM on March 27, 2014 [1 favorite]
I still wouldn't buy it. That's extending "excercise of religion" to include what someone else does with money that you give them. Their argument is just an extended "money is speech" argument; now money is apparently prayer. I mean, why can't your boss say you can't spend your paycheck on alcohol, or refuse to have anti-slip mats in the shop if it's against his beliefs? Because in any other context, we would not accept that someone's religions right is infiringed by workplace standards. Why is women's health any different?
Freedom of religion is a private, individual right. It has no economic dimension, which is why religious organizations are specifically exempted from most taxation. For-profit concerns have lost any such shelter.
posted by spaltavian at 5:59 AM on March 27, 2014 [1 favorite]
I think it's more an intellectual exercise, since at the the end of the day none of these people is going to give up the benefits they get from incorporating anyway.
posted by mikelieman at 6:18 AM on March 27, 2014
posted by mikelieman at 6:18 AM on March 27, 2014
It's more that it's nigh impossible for a layman to believe that a principled judge could ever agree that Hobby Lobby, which is a legally distinct person from the Greens, could have religious beliefs.
The problem there is the "legally distinct person" part, not the religious beliefs part.
Having spent a lot of time with nonprofits, I'm really familiar with the idea of organizations or companies having belief systems. It may sound silly, but it's often quite real. The Board of Directors is there because they all believe in what the incorporated organization is doing. The Executive Director is chosen as much for their belief in "the mission" as their governing ability. A large portion of the staff also share the values, or they wouldn't choose to work there.
I can't imagine there would be as much outcry over a legal aid clinic refusing, say, to defend a rapist or an an abortion bomber, on moral grounds- which I think it would be completely their right to do and I would cheer if I heard it. Or for a more real example, for a Food Co-Op to engage in BDS against Israeli companies.
So companies at least loosely holding moral beliefs is a real thing that happens. I can easily believe that a company can hold, in the aggregate, religious beliefs, if its major executives and employees largely hold the same religious beliefs.
So why not eliminate the personhood requirement, and simply state that anyone acting through a company still has the rights that the person would have originally had?
posted by corb at 8:31 AM on March 27, 2014
The problem there is the "legally distinct person" part, not the religious beliefs part.
Having spent a lot of time with nonprofits, I'm really familiar with the idea of organizations or companies having belief systems. It may sound silly, but it's often quite real. The Board of Directors is there because they all believe in what the incorporated organization is doing. The Executive Director is chosen as much for their belief in "the mission" as their governing ability. A large portion of the staff also share the values, or they wouldn't choose to work there.
I can't imagine there would be as much outcry over a legal aid clinic refusing, say, to defend a rapist or an an abortion bomber, on moral grounds- which I think it would be completely their right to do and I would cheer if I heard it. Or for a more real example, for a Food Co-Op to engage in BDS against Israeli companies.
So companies at least loosely holding moral beliefs is a real thing that happens. I can easily believe that a company can hold, in the aggregate, religious beliefs, if its major executives and employees largely hold the same religious beliefs.
So why not eliminate the personhood requirement, and simply state that anyone acting through a company still has the rights that the person would have originally had?
posted by corb at 8:31 AM on March 27, 2014
So why not eliminate the personhood requirement, and simply state that anyone acting through a company still has the rights that the person would have originally had?
Would people accept the unlimited legal responsibility and liability that goes hand in hand with that?
posted by mikelieman at 8:39 AM on March 27, 2014 [2 favorites]
Would people accept the unlimited legal responsibility and liability that goes hand in hand with that?
posted by mikelieman at 8:39 AM on March 27, 2014 [2 favorites]
It's nigh impossible to do this in a way that doesn't create a legal precedent for being able to say the magic words "I have a sincerely-held religious belief X..." which can then undermine any law meant to apply to corporations, and eventually to individuals since corporations are made up of individuals. *high-fives Mitt Romney.* This Pandora's Box problem was spelled out quite convincingly in U.S. v. Lee, which was cited in the briefs and mentioned during the oral arguments.
And look, that's great if you want to minimize the state's ability to regulate business (and I know you do!) but religious freedom was not meant to be a kill switch that corporations can flip to avoid following laws they don't like.
On the specific example of businesses choosing their clients / boycotting certain suppliers: there's no law saying you have to defend abortion bombers or carry SodaStream products, but there is a law saying corporations need to provide contraception coverage *if* they choose offer health coverage, which they don't have to. Nobody has a problem with corporations exercising their beliefs through their business practices as long as they conform to the law, but Hobby Lobby wants all the benefits and none of the responsibilities.
posted by tonycpsu at 8:47 AM on March 27, 2014 [7 favorites]
And look, that's great if you want to minimize the state's ability to regulate business (and I know you do!) but religious freedom was not meant to be a kill switch that corporations can flip to avoid following laws they don't like.
On the specific example of businesses choosing their clients / boycotting certain suppliers: there's no law saying you have to defend abortion bombers or carry SodaStream products, but there is a law saying corporations need to provide contraception coverage *if* they choose offer health coverage, which they don't have to. Nobody has a problem with corporations exercising their beliefs through their business practices as long as they conform to the law, but Hobby Lobby wants all the benefits and none of the responsibilities.
posted by tonycpsu at 8:47 AM on March 27, 2014 [7 favorites]
The Daily Show: Jesus Christ Superstore - The Supreme Court considers craft store Hobby Lobby's claim that it should not be required to provide free birth control to employees on religious grounds.
posted by homunculus at 9:20 AM on March 27, 2014 [1 favorite]
posted by homunculus at 9:20 AM on March 27, 2014 [1 favorite]
Dahlia Lithwick: Is the Contraception Mandate Doomed? It sure looks that way after the Hobby Lobby argument.
Oh wow. Come for the analysis of oral arguments, stay for the comparisons of all the justices to different contraception methods.
posted by asperity at 9:57 AM on March 27, 2014 [2 favorites]
Oh wow. Come for the analysis of oral arguments, stay for the comparisons of all the justices to different contraception methods.
posted by asperity at 9:57 AM on March 27, 2014 [2 favorites]
I have a suspicion that after this ruling gets issued I'm going to become an angry, frothy, ranting Homeland Security watch list type.
posted by BrotherCaine at 12:45 PM on March 27, 2014 [1 favorite]
posted by BrotherCaine at 12:45 PM on March 27, 2014 [1 favorite]
Read This One Document To Understand What The Christian Right Hopes To Gain From Hobby Lobby
posted by homunculus at 11:46 AM on March 31, 2014
posted by homunculus at 11:46 AM on March 31, 2014
Hobby Lobby's Hypocrisy: The Company's Retirement Plan Invests in Contraception Manufacturers
When Hobby Lobby filed its case against Obamacare's contraception mandate, its retirement plan had more than $73 million invested in funds with stakes in contraception makers.
posted by Blazecock Pileon at 10:31 PM on April 1, 2014 [3 favorites]
When Hobby Lobby filed its case against Obamacare's contraception mandate, its retirement plan had more than $73 million invested in funds with stakes in contraception makers.
posted by Blazecock Pileon at 10:31 PM on April 1, 2014 [3 favorites]
Marci A. Hamilton: "Your Laws on RFRA"
To preview my main point: the courts have no business deciding who gets a religious exemption to federal and state laws. They simply don’t have enough information nor do they have the capacity to fix the social problems that are generated by these decisions.posted by audi alteram partem at 8:15 AM on April 3, 2014
Hobby Lobby, Inc., Changes Its Religion
posted by homunculus at 9:39 AM on April 3, 2014 [1 favorite]
posted by homunculus at 9:39 AM on April 3, 2014 [1 favorite]
Hobby Lobby, IUDs, and the facts: The U.S. Supreme Court will decide later this year whether a corporation can have religious beliefs. Maggie Koerth-Baker looks at the science of birth control, and how it might inform the debate.
posted by homunculus at 11:51 AM on April 19, 2014
posted by homunculus at 11:51 AM on April 19, 2014
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posted by entropicamericana at 10:57 AM on March 25, 2014 [15 favorites]