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December 04, 2013

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Remove the legal structure for corporations, and shareholders and directors become personally responsible for corporate liabilities.

So if they're overdue on paying an invoice? Put a lien on the CEO's house.

Corporate "personhood" is a violation of the 13th Amendment.

Owning persons has been illegal for a century and a half in this country. Owning businesses is the American way, the capitalist way, god's own way. But owning "persons" is an abomination.

Persons have rights. Among those rights is the right to own property. If a corporation has rights separate and distinct from the rights of its shareholders, then a corporation has the right to own property which does not belong to its shareholders. Has there ever been a lawsuit hinging on that point?

--TP

In the past, state laws limited these things in large ways, and the articles of incorporation of corporate entities would also limit what the entity could do, but these days it seems these limits have largely gone by the wayside, so a corporation can do anything that is "lawful" as long as certain procedures are followed.

Since way before I started law school in 1997, corporations could be formed for any lawful purpose and almost all Articls of Incorporation grant an extremely broad writ to the corporate entity.
That was Texas law. Delaware was much more pro-corporation.

So, my question is: what happens to corporations formed under state law when that state repeals its corporate code?

If a state were to do something like this--as radical an upheaval of existing commercial norms as I can imagine--then my guess is the answer is: Nothing. The answer is "nothing" because by the time the state got around to eliminating corporations, the private sector would have long since vanished or migrated elsewhere. A move of this nature would be Venezuela on steroids.

If a corporation has rights separate and distinct from the rights of its shareholders

They do, by definition. Ownerhip of the stock confers no interest in specific corporate assets, just the right to recover pro rata if the assets are sold or liquidated.

then a corporation has the right to own property which does not belong to its shareholders.

This is a completely true statement. The shareholders own stock in the company, the company owns the assets. The company can buy and sell its assets, the shareholder, unless the stock is restricted, can buy and sell the stock. This is actually pretty basic stuff.

For example: I own stock in Duke Energy. I have no rights whatsoever over any of Duke's assets.

Has there ever been a lawsuit hinging on that point?

Probably, but in the distant past back when the law was not settled. In closely held corporations these days, the litigation you see is related to control and *oppression*, i.e. screwing, mirnority shareholders.

McKinney: Since way before I started law school in 1997, corporations could be formed for any lawful purpose and almost all Articls of Incorporation grant an extremely broad writ to the corporate entity.

Well sure, perhaps I should have said "distant past," although 1997 is starting to seem like that for me.

If a state were to do something like this--as radical an upheaval of existing commercial norms as I can imagine--then my guess is the answer is: Nothing. The answer is "nothing" because by the time the state got around to eliminating corporations, the private sector would have long since vanished or migrated elsewhere.

I agree. Corporations are useful tools in the complex, modern economy, where the kind of coordination and capital required to build, e.g., a 787 or to run Amazon.com would simply be impossible (or nearly so) without centralized management, limited liability, and unlimited life.

Forgetting that they're tools seems to be part of the problem these days, however.

Since way before I started law school in 1997, corporations could be formed for any lawful purpose

This is undoubtedly true, but the history of corporations - publicly traded common stock companies - goes back a few centuries.

During much of that history, it was common, if not the norm, for corporations to be organized for specific and limited purposes, and often for specific and limited lifespans.

None of that has been true in any of our lifetimes, however.

If a corporation has rights separate and distinct from the rights of its shareholders

They do, by definition.

Agreed.

Because the corporation has a legal identity separate from that of its shareholders. That is the reason it exists.

Which is why, IM not-a-lawyer O, Hobby Lobby's claim for protection under RFRA is ridiculous.

Hobby Lobby per se is incapable of "exercising religion", in any way shape of form. Just like it's incapable of crossing the street, reading the newspaper, or going fishing on the weekend.

It's nonsensical, but it's the logical outcome of considering corporations to have the same constellation of rights that belong to natural persons.

We've arrived at a truly FUBAR situation. I'm curious to see what the SCOTUS will make of it. I'm not looking forward to it, but I am curious.

Not the point Ugh wanted to pursue, apologies for the thread jack.

If one of the objectives of this line of reasoning is to stem the tide of corporate dollars flowing into the political process, I would tend to want to regulate the receiving end. Fewer things to watch, there.

But asking Congress to pass laws that regulate against the interest of its members in any way is kind of a pipe dream. This is one of the biggest flaws in our system of government, in my opinion.

With the present composition of the Supreme Court, I suppose it's just a matter of time before a corporation will be allowed to run for President. If Caligula could make a horse a consul, why can't an honest, upstanding corporation become POTUS?

McTx: For example: I own stock in Duke Energy. I have no rights whatsoever over any of Duke's assets.

If you owned NO stock in Duke, you surely would have no rights over its assets. And you, as an INDIVIDUAL shareholder, surely have no more rights over Duke's assets than you, as an individual citizen, have over your town's assets.

But: is Duke Energy, Inc. owned by its shareholders or isn't it? Do you, as a shareholder, have no say AT ALL on what assets "Duke Energy" buys or sells? Could Texas(?) confiscate any property "owned by Duke Energy" without it amounting to a taking FROM YOU?

--TP

russell, If Hobby Lobby were not a corporation but rather an individual person who employed people and didn't like subsidizing birth control, would you say that s/he had the right to refuse to do so?

Because if you wouldn't, then your objection doesn't seem to be about corporate personhood as much as about religious rights in general.

Tony:

I'm sure a lawyer (Ugh and McK, unless I'm mistaken) could provide a better explanation, but when I don't know something (frequent), I generally turn to wikipedia:

http://en.wikipedia.org/wiki/Stock#Shareholder_rights

While hardly definitive, I generally find wikipedia to be "accurate" to a good approximation. It doesn't quite answer all your questions, but I think it covers most of them.

FYI, wikipedia is doing fundraising. I've donated and I encourage everyone else to do so as well! Even $3 helps!

Ugh:

Interesting post, and I'm not quite sure how to contribute to the discussion. If the question is: could society exist without the legal instrument of incorporation, I'd say yes. If you're asking if I think think its a good idea, I'd say no. If your asking (and I think this is the crux of it) how it would happen whether or not its a good idea...dissolving corporations is something that happens. It seems like it would be like that except on a larger scale.

And to be clear, IANAL, but I had to take a class on very very basic corporate law, but basically wouldn't this be like bankruptcy? A judge partitions the assets among creditors and shareholders? Except we're talking about a lot of corporations and a lot of judges. It would probably take awhile.

What would society look like after? I can't do more than speculate. My google-fu can't point to a modern society with both a functioning stable government and no corporations. Maybe others have more luck.

But it seems to me, and maybe I'm wrong, what you're really getting at is what you said in the comments:

"I agree. Corporations are useful tools...Forgetting that they're tools seems to be part of the problem these days, however."

That is the start of a very relevant discussion...what the proper roles and responsibilities of corporations are in society. Is that what you were getting at?

Julian: "russell, If Hobby Lobby were not a corporation but rather an individual person who employed people and didn't like subsidizing birth control, would you say that s/he had the right to refuse to do so?

Because if you wouldn't, then your objection doesn't seem to be about corporate personhood as much as about religious rights in general."

Religious 'rights' of *employers*. The employees can go jump in a lake, and 'religious rights' means the 'right' to object to only certain things. I didn't see anybody on the right discussing the 'right' of companies to opt out of being used by the NSA for universal surveillance, for example.


And to my mind, if the Hobby Shop gets its exmption, how does this logic not invalidate all labor law on equal treatment and non-discrimination?

The employees can go jump in a lake

I don't think that's a fair observation. The employees are free to do whatever they please. They're just not entitled to benefits their employer doesn't choose to offer.

Possibly I am arguing counter to a point you're not making, though. Wouldn't be the first time for me.

russell, If Hobby Lobby were not a corporation but rather an individual person who employed people and didn't like subsidizing birth control, would you say that s/he had the right to refuse to do so?

IMO there are a number of issues involved in your question.

First of all, I'm not sure it's accurate to think of the employer as "subsidizing birth control". If you employ people and include health insurance as part of the compensation, it's not your business what use they make of that.

It's their asset, not yours, and your association with how they use it is so indirect that claims of "subsidizing" one use or another seems very thin. To me, anyway.

And how far can you stretch that idea? If I hire someone and they take the money I pay them and piss it away on booze, or blow it at the track, am I subsidizing their addiction? If they donate some of it to causes with which I strong disagree, am I subsidizing those causes? If they use it to fund criminal activity, am I subsidizing those activities?

If the Greens prevail and Hobby Lobby is granted an exemption from the mandate, and some of their employees purchase the drugs in question out of pocket, aren't they subsidizing those drugs through the wage they pay the employees? How is that different than "subsidizing" it through the insurance?

Second, IMO religious conscience is best applied to oneself and one's own behavior, not others'. The flip side of the Green's efforts here is that, were they to prevail, their employees would be denied compensation that others receive as a matter of course, and which is their due under the law, and which many of them would likely not have a religious scruple about using.

So, there's that.

I am *by far* not hostile to religious faith and practice, nor to the demands and obligations of conscience, and I'm actually sympathetic to the Green's *personal* dilemma.

But I also recognize that people believe lots of different things, many of them quite strongly, and if we're all going to participate in any kind of public life at all, we all have to accept that everyone else can't be expected to accommodate us if we find some aspect of public, common life objectionable.

Trust me when I say that I have my own list of things like this, as do many if not most people.

So the short answer to your question is no, if someone was hiring somebody else directly, not via a corporation, and it was in a context where the laws concerning employee compensation applied (i.e., not a babysitter), IMO they would not be able to refuse to comply with the law because they had a moral objection to some part of it.

All of which is an aside to the basic point that the Greens, as people, are not the same as Hobby Lobby. The Greens have religious scruples, Hobby Lobby is incapable of having them.

You can't have it both ways. You can't say "my corporation is indistinguishable from me" when it comes to complying with compensation law, and then say "my corporation and I are distinct entities" when it comes to (frex) liability.

If you want the protection of the law, and participate in public life with those protections in hand, then you have to observe the rules by which public life is governed.

"I don't think that's a fair observation. The employees are free to do whatever they please. They're just not entitled to benefits their employer doesn't choose to offer."

If this is true, how is it that employees can be entitled to, among other things:

A workplace free from sexual harassment
Hiring and promotion decisions made without racial bias
Minimum wages
Minimally safe working conditions

Regardless of whether the employer chooses to offer them?

Unless you think the above entitlements (or "rights") are bad/unconstitutional/whatever, you're clearly on board with employees being entitled to some things regardless of employer choice.

If Dow Chemical were Episcopal and DuPont were Jewish, would one of them have to convert in the event of a merger?

Regardless of whether the employer chooses to offer them?

There are laws that ensure those things. Laws requiring birth control in an employer-offered healthcare package, not so much.

At least, until recently perhaps.

At least, until recently perhaps.

Yes, that's exactly right. And, all of the things that Julian mentions were brand-spanking-new at some point.

Does the vintage of the mandate change the underlying issue?

what happens to corporations formed under state law when that state repeals its corporate code?

This is an interesting question, but I guess I'm not clear on why it comes up.

I can't imagine any state doing something like this, because corporations are actually very useful and effective instruments for their basic purpose.

Is your question more or less theoretical? Or, is there a real-world question you are trying to raise?

Does the vintage of the mandate change the underlying issue?

Not really, but the effectivity of ACA is still mostly in the future.

In the present tense, certainly, employers are not required to offer health insurance at all. Whether they're required to offer insurance plans that include e.g. birth control, morning after pills, etc under ACA is sort of beyond my ken. Which is a testament to my laziness, as well as a testiment to the godawful length of the bill.

If people have a particular beef with the dictates of ACA, they can go to the courts. If they don't find relief there, there are further choices, but maybe not what they'd prefer. They could for instance look into splitting into individual franchises, which probably could all duck under the lower limit of (IIRC) 50. Or sell off the business.

This kind of coercive policy is not really in line with my notions of what our government should be doing, which is my grounds for objecting.

"Not really, but the effectivity of ACA is still mostly in the future."

The contraceptive mandate is being challenged in the Supreme Court right now. I don't know what part of the ACA that is relevant to this discussion you could be alluding that is "mostly in the future." The contraceptive mandate regulations are currently in effect.

"Whether they're required to offer insurance plans that include e.g. birth control, morning after pills, etc under ACA is sort of beyond my ken. Which is a testament to my laziness, as well as a testiment to the godawful length of the bill."

It is chiefly a testament to your laziness, as I uncovered that they are in fact required to include insurance plans that offer such things through fifteen seconds of googling.

"This kind of coercive policy is not really in line with my notions of what our government should be doing, which is my grounds for objecting."

What do you mean "this kind"? I named other coercive policies, like OSHA, title VII, and so on. Do you have a problem with them too? Or is this one different?

I didn't know the employer mandate was such a secret.

The contraceptive mandate regulations are currently in effect.

Corporate policy coverages are the same right now as they were at the start of the year, are they not?

Maybe I'm just out of touch.

I uncovered that they are in fact required to include insurance plans that offer such things through fifteen seconds of googling

I award you one Internet.

Or is this one different?

What private citizens are regulated by OSHA? If I want to change a light bulb without flipping the breaker off, will OSHA write me up for a violation?

Maybe this is something we're not going to agree on.

There are limits to the employer mandate, hsh. I found some of those with about 15 seconds of Googling.

Which maybe makes me a little less lazy than I like to pretend, but only a little.

"Corporate policy coverages are the same right now as they were at the start of the year, are they not?

Maybe I'm just out of touch."

I have no idea what this means. Can you be less cryptic?

"What private citizens are regulated by OSHA? If I want to change a light bulb without flipping the breaker off, will OSHA write me up for a violation?"

What is the point of this question? If you're curious about OSHA, go google up a storm. If you come up with something that rebuts any of the points I've made, by all means share it.

"There are limits to the employer mandate, hsh. I found some of those with about 15 seconds of Googling."

What limits? Are those limits relevant? What are you talking about?

There are limits to the employer mandate, hsh.

I'm not sure I get your point here. When the mandate goes into effect, employers with 50 or more FTEs will have to provide health insurance that meets certain requirements or pay a fine. So, you are correct in that the mandate does not yet apply, though the issue is still a very real one, given the inexorable passage of time, which explains the existence of the court case mentioned in the top post.

At any rate, certain things must be covered, some of them specifically because they are considered preventative care and reduce overall healthcare costs - solving the collective action problem discussed here a month or so ago, namely that individual insurers don't want to pay for preventative care that is likely not to benefit them in the future, after someone moves to another insurer, even though all insurers would benefit if they all played along. One of the things under the heading or "preventative care" is contraception.

No one is being forced to provide contraception. Most employers don't do that, even if they are smart enough to save money in the long run by allowing their empoyees easier access to contraception by providing health insurance that covers it.

Setting aside the well-reasoned argument russell made about wages "subsidizing" anything employees want to spend them on, if we were to view employer-provided health insurance as a subsidy for whatever use employees make of it, it would be a negative-dollar subsidy in the case of contraception, which is a bit weird conceptually (or contraceptually, perhaps).

Yes, the government is coercing employers to participate, along with many other economic actors, in the relative reduction of our rapidly rising healthcare costs. We're on a slippery slope to Stalinist forced atheism.

If I want to change a light bulb without flipping the breaker off, will OSHA write me up for a violation?

No. And the ACA will not allow the government to fine you for not going on the pill, either.

thompson: That is the start of a very relevant discussion...what the proper roles and responsibilities of corporations are in society. Is that what you were getting at?

russell: I can't imagine any state doing something like this, because corporations are actually very useful and effective instruments for their basic purpose.

Is your question more or less theoretical?

These are both (more or less) in response to my question of what happens to corporations formed under state law when that state repeals its corporate code?

It is more or less theoretical as it would never happen, nor would I endorse it happening. It's mostly reminder that corporations, unlike natural persons, are creatures of state law and thus things can be done to them that can't be done to natural persons - like being legislated out of existence.

Again, they're a tool subject to refashioning if it becomes broken, or more harmful than helpful. It would be an interesting test case if a corporate code were amended to provide that corporations could not, e.g., spend funds for advertising. Free speech violation?

like being legislated out of existence.

count me in!

This kind of coercive policy is not really in line with my notions of what our government should be doing, which is my grounds for objecting.

I definitely get that and understand it.

The problem is that if there is any standard or mandate or requirement at all, then there will be coercion.

If there is no standard or mandate or requirement, then the fundamental benefits of having (in this case) public health policy begin to be eroded. Certainly the public health benefits of making basic care widely available begin to be eroded.

The range of things to which somebody, somewhere will have a strong religious objection are not limited to contraception. Nor, as in the Green's case, are they even limited to contraception per se, but only to certain kinds. And, among the objectionable kinds, some are more objectionable than others.

So, not so simple.

Some people object to blood or plasma transfusions on religious grounds. Some people object to vaccinations on religious grounds.

Should they be exempted from offering insurance to their employees that include coverage for vaccinations or transfusions?

Note that no-one is asking them to *purchase or use* contraception (or transfusions or vaccinations). What's being required of them is compliance in a public policy where things they object to are available by other people, to other people.

At a certain point, and not a particularly remote one, the value of having a public policy at all gets lost due to the number and complexity of exemptions and carve-outs.

You could simplify life by simply taking stuff like health care out of the public arena altogether, but then you get a million other problems. IMO that approach amounts to basically throwing up your hands and walking away from real problems.

I appreciate the Greens' *personal" discomfort and objection, and have nothing against them or their point of view. I just don't see how the public sphere works if anyone can opt out whenever their conscience is troubled.

Anyone who pays taxes, frex, is in the same boat. Which is to say, we all are in the same boat.

One way around the Green's personal discomfort would be to have single-payer or a national health service. Then their hands would be clean.

i get the feeling that the Greens would find some other personal discomfort to share with us.

corporations, unlike natural persons, are creatures of state law and thus things can be done to them that can't be done to natural persons - like being legislated out of existence.

i have nothing to add to this other than "well said".

"corporations, unlike natural persons, are creatures of state law and thus things can be done to them that can't be done to natural persons - like being legislated out of existence."

I don't see anyone really disputing this, and I doubt Paul Clement would. The debate is not whether corporations and people are at all different; the debate is how big a difference there should be, i.e. "what things," exactly, can or can't be done to corporations. Right?

the debate is how big a difference there should be, i.e. "what things," exactly, can or can't be done to corporations. Right?

I think it's a practical question of should or shouldn't rather than can or can't. I think that's what Ugh's getting at. Corporations don't have the same rights that are granted to human beings in the constitution unless a state says they do, for the sake of some practical purpose, which means the state can just as easily say they don't, for some practical purpose.

So there is no "can't" with regard to limiting what corporations can do.

What do you mean "this kind"? I named other coercive policies, like OSHA, title VII, and so on. Do you have a problem with them too? Or is this one different?

Shouldn't any policy that coerces be the last and not the first resort, and then only for reasons that really do compel? And, are you saying that if I acquiesce in even one coercive policy, I've waived my right to object to any other coercive policy?

The gov't is mandating birth control and day after pills. This is a policy preference of the left. It is, what the left continually accuses the right of doing, forcing the left's view on those who disagree.

Abortion is next, and any statement to the contrary is as reliable as Obama's promise that everyone gets to keep their plan and their doctor.

Whether it is constitutional in all configurations, or whether it is constitutional to require a corporation but not an individual employer to do something that violates his/her conscience--and is known to do so--is beside the point. I haven't thought heavily about it and don't have an opinion at the moment. Regardless, it is disturbing. It may be just good, clean fun for progressives, but it is heavy-handed executive whimsey for many of the rest of us. It sometimes seems progressive are only happy when they are forcing others to do their will.

"Shouldn't any policy that coerces be the last and not the first resort,"

All legal requirements coerce

"and then only for reasons that really do compel?"

I guess YMMV on what compels

"And, are you saying that if I acquiesce in even one coercive policy, I've waived my right to object to any other coercive policy?"

I am not saying that. I asked Slarti (or anyone) to state the difference they see between the contraceptive mandate and Title VII.

Please understand I see a difference too, but I want to know what you guys think--it's easier for me to ask than to guess.

So, explain to me the material difference between

1) requiring employers covered by PPACA who provide health insurance to provide insurance that covers contraception, even if they religiously object to contraception

and

2) requiring employers covered by Title VII to not racially discriminate in hiring, even if they religiously object to race-mixing.

The gov't is mandating birth control and day after pills.

"mandating" = mandating that they are covered as part of a standard health insurance package. not mandating = [any of the many other things it could be].

if you don't want to use them, don't use them. your shiny new STD or unwanted pregnancy will be covered, too.

If I want to change a light bulb without flipping the breaker off, will OSHA write me up for a violation?

It might if you're an employee in a home-based worksite.

1) requiring employers covered by PPACA who provide health insurance to provide insurance that covers contraception, even if they religiously object to contraception

and

2) requiring employers covered by Title VII to not racially discriminate in hiring, even if they religiously object to race-mixing.

First, show me a religion that favors racial discrimination and that is impacted by Title VII. Otherwise, I think what we have here is a straw man.

But, I'll fight your straw man. My refusal to buy your sister birth control pills in now way effects your sister's right to buy her own pills. Further, no one is claiming the right to discriminate against people who use birth control. Further still, we have this thing called the 14th amendment that provides for equality under the law. Taking that a step further and prohibiting inequality in the work place is a negative injunction--do no harm to minorities or women. ACA compels affirmative acts that violate conscience. When the gov't gets in the business of doing that to people, it is disturbing, to say the least.

But like I said, for many progressives, forcing others to live by progressive values is a source of joy and fulfillment. Making others do what *you* know is good for them, is a good thing, whether those being forced know it or not.

if you don't want to use them, don't use them. your shiny new STD or unwanted pregnancy will be covered, too.

Missing the point, again. This isn't about what the employee does or doesn't do. It is what the employer and the insurer are required to do. The employer has no choice--the insurer has no choice--but to provide this coverage.

"First, show me a religion that favors racial discrimination and that is impacted by Title VII. Otherwise, I think what we have here is a straw man."

How about an employer who is a Christian Scientist and objects to being required to provide health insurance coverage for any medical treatment? Plausible enough for you?

" ACA compels affirmative acts that violate conscience. When the gov't gets in the business of doing that to people, it is disturbing, to say the least."

The ADA requires affirmative acts, including reasonable accommodations for the disabled. Does that disturb you? We all have to pay taxes, some of which go to support the military. If that bothers a Quaker's conscience, are you disturbed?

"My refusal to buy your sister birth control pills in now way effects your sister's right to buy her own pills."

X's refusal to hire black people in no way affects a black person's ability to get their own job elsewhere.

What's the difference between my hypo and yours?

"My refusal to buy your sister birth control pills in now way effects your sister's right to buy her own pills."

It's more like saying my sister's insurance provider should not be required to provide birth control if doing so would violate your religious principles. You are not a party to the actual transaction involving the birth control, so how are you harmed?

The gov't is mandating birth control and day after pills.

The government is mandating that insurance policies offered as part of employee compensation (or maybe all health insurance policies, I freely confess to laziness a la slarti) include coverage for birth control, including day after pills.

The above two things are not the same.

Nobody is required to take a morning-after pill. At the uttermost, an employer is required to contribute to an insurance policy that includes coverage for the same.

So, for that matter, will employees in most cases, because employees generally have to contribute to the cost of their health insurance. Will individual employees be able to demand alternate health insurance plans, tailored to their personal convictions?

I don't really know how insurance funds are handled from an accounting point of view, but if Insurance Company X sells a policy with coverage for birth control to Atheists Inc., and a policy without to Hobby Lobby, are they required to keep the revenue inflows and outflows for those policies scrupulously separate, lest some dollars paid in by Hobby Lobby should somehow find themselves paying for a morning-after pill purchased by an employee of Atheists Inc.?

Another, different question:

The money being used to pay the premiums for Hobby Lobby's insurance policy, whatever it is, is not coming from the personal bank account of the Greens. It's coming from the wealth held by Hobby Lobby. Do the employees of Hobby Lobby, who are in no small part responsible for the creation of that wealth, have any voice in what their compensation should look like? Or is it purely the Green's call?

This issue is being discussed as if the only actors involved here are the Greens personally, and The Oppressive State. And, that the only dynamic here is whether a religious individual should be COERCED into doing something they find objectionable.

What I want to reiterate, ad nauseum if need be, is that the degree to which the Greens are being required to engage in things they object to is no more or less than every single person in this country is required to do, when we pay a penny in taxes of any form, or send our kids to public schools, or participate in almost any form of public life.

Operating a for-profit business is an activity that by its nature takes you out of the sphere of your personal druthers. You can't decide to not provide goods and services to people because you don't approve of their lifestyle, you can't fire people because you don't like what they do on the weekends, etc etc etc.

You can't do these things because engaging in public behavior, of whatever kind, is not solely an act of self-expression, and is therefore subject to a greater or lesser degree to other folks' interests and demands.

You don't have to get involved in any of that. You can go live in the woods and make, raise, or hunt and gather whatever you need to live on.

If you don't want to go that way, you should prepare yourself for social, legal, and civic coercion, because that's the reality.

And all of those forms of coercion are BY NO MEANS the unique and exclusive domain of the left.

I appreciate the Greens' dilemma, but if you want to play in the big sandbox you don't always get your way. That's life.

The employer has no choice--the insurer has no choice--but to provide this coverage.

good

"this coverage" will help reduce unplanned pregnancies (49% of all pregnancies in the US are unplanned), which will lower healthcare costs for everyone. and it will help reduce unwanted pregnancies, which is a good thing. and it might even help reduce the transmission of STDs, which is an obvious benefit to the user and to the general public.

suck it up. sex is something people do, and it's risky in terms of lifestyle and healthcare coverage; and these things help mitigate those risks. and that benefits everyone.

if you're so concerned about the burdens placed on the poor employers, you should think about advocating for a single payer system.

Hobby lobby is happy to buy prodcuts made in China, with its sex selective abortions and forced prison labor (many of whom are imprisioned becuase of their religous beliefs (yeah, that's what actual religous persecution looks like). It seems that the owner's Christian morals stop when where is more money to be made.

So yeah, these corporate religous beliefs are awfully flexible.

"this coverage" will help reduce unplanned pregnancies (49% of all pregnancies in the US are unplanned), which will lower healthcare costs for everyone.

No, it won't. If you actually examine the causes of unplanned pregnancy, access to birth control is not a significant factor in the United States. Birth control is ubiquitous at pharmacies, and available for free, or nearly no from both governmental sources, such as metro and county health departments, or NGOs like Planned Parenthood.

Above and beyond that, the small percentage of individuals who are unable to easily access or afford birth control are not likely to be employed at a job that pays well enough to provide health insurance.

If you want to make birth control easier to get, the solution to offer the pill over the counter, not through some convoluted prescription regimen that still requires women to use a medical gatekeeper.

This is a completely symbolic fight for both sides. The practical aspects on women's health and unplanned pregnancy are negligible.

How about an employer who is a Christian Scientist and objects to being required to provide health insurance coverage for any medical treatment? Plausible enough for you?

It is, in theory, but I know of no Christian Scientist now or in the past who has made such a claim, but the example *is* plausible. If you reread my first comment, I expressly stated that I am not addressing the constitutional issue. I am making the point that progressives are fine with coercion as long as people are being coerced progressively. My second point is that progressives are fine imposing their values on others and in this instance it is heavy handed and disturbing--particularly since it is being done by the executive and not congress.

But, if you are asking me to say why the First Amendment would allow the state to compel a Christian Scientist to buy health insurance for an employee but does not permit compelling an employer to buy insurance that includes BC, I could probably put together an argument, but it would take more time than I have--complex legal arguments have that feature; they take time to formulate and express. Right now, I don't have that time. If there is a line, it wouldn't be particularly bright. I might even conclude that the requirement is constitutional. I don't know, which is why I begged off in my initial comment.


X's refusal to hire black people in no way affects a black person's ability to get their own job elsewhere.

What's the difference between my hypo and yours?

The difference is night and day. Whether I discriminate illegally hiring is irrelevant to what benefits I confer on my employees after they are hired. If I hire someone, I am not discriminating against that person. If I choose not to distribute condoms to men and birth control pills to women, that is not a discriminatory act on my part just as not distributing the American Prospect is not discrimination.

The above two things are not the same.

Russell, I'm pretty sure the context of my pitch referred to the HHS' requirement of coverage and was not implying that HHS is requiring everyone to use BC.

What I want to reiterate, ad nauseum if need be, is that the degree to which the Greens are being required to engage in things they object to is no more or less than every single person in this country is required to do, when we pay a penny in taxes of any form, or send our kids to public schools, or participate in almost any form of public life.

This is a subset of the "We are all coerced to some degree, therefore any further coercion is no big deal" phenomena I noted above.

And it misses the point. Paying taxes per se that support something that violates a taxpayer's conscience has never given anyone constitutional grounds to not pay taxes. However, this is different: employers are being required to insure their employees, or pay a penalty, and the insurance MUST include BC and morning after pills. Abortion is down the road--we all know this--but progressives are smart and they are taking the long view. The gap between "all taxpayers" and "all employers" and the gap between "gov't services" and "indirectly funding abortion" are pretty wide.

But, from a progressive point of view, once we've narrowed the gaps this far, the next round of "thou shalt's" can be even more restrictive and more universal.

Cleek is honest, for which I thank him/her (seriously, I think you're a guy, but damned if I actually know that and I absolutely intend no offense). In his world, BC is a good thing and it will be made available and anyone who disagrees can just learn to live with it. Progressivism in its purest form.

Cleek is honest

Crap. This implies that everyone else isn't. Really bad word choice. Please read "unapologetic". Apologies to all.

It's more like saying my sister's insurance provider should not be required to provide birth control if doing so would violate your religious principles. You are not a party to the actual transaction involving the birth control, so how are you harmed?

I disagree. If I am the employer, I am buying the insurance that pays for the BC. No insurance, no BC unless sister buys it for herself.

First, show me a religion that favors racial discrimination and that is impacted by Title VII. Otherwise, I think what we have here is a straw man.

Given that Title VII only carves out religious organization exceptions for religion, sex, and national origin, but not for race, I'm pretty sure your average Christian Identity church finds said title to be both exceedingly coercive and entirely uncompelling state interference into a matter of private religious conscience. The same would naturally follow for any employer belonging to a Christian Identity denomination.

Pretty sure I just dropped a comment into the memory/spam hole. If someone duly empowered to do so could give said blighted pit a looksee and rescue the aforemention should it be deemed worthy, I'd be much obliged.

Ugh:

"Again, they're a tool subject to refashioning if it becomes broken, or more harmful than helpful. It would be an interesting test case if a corporate code were amended to provide that corporations could not, e.g., spend funds for advertising. Free speech violation?"

I could be wrong (something tells me you'd be more qualified than I to answer this question), but I think that a similar issue was already decided in Citizen's United. To quote Justice Kennedy:

"If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

It's possible to consider commercial speech (advertising) less protected than political speech, and an example of that would be advertising restrictions of off-label use of medicines or advertising restrictions on tobacco products near schools or during saturday morning cartoons.

(An interesting corollary, can an individual advertise for tobacco around school grounds? "Hey kids, I sure enjoy the smooth flavor of this cigarette!" Other than being WRONG in so many ways, is that illegal? Contributing to the delinquency of a minor, maybe?)

So clearly we CAN restrict speech of corporations, and even individuals. But we tend to do it in limited ways in the face of compelling public interest. Fire in a movie theater, imminent threats, etc.

I imagine people here disagree soundly on what is "limited" and what is "compelling", but most agree that limited restrictions to compelling problems do exist and are, at times, warranted.

I think the free speech hypothetical is an important one, because freedom of expression, like freedom of religion, strikes to the core of self-determination. And I think one of the things you have to carefully weigh, as I think Kennedy did, is if you can restrict the rights of corporations (even if they are endowed by state law and legal fiction) without indirectly restricting the rights of individuals.

To give you a completely fictitious hypothetical:

If there was a congressman that was blatantly for, say, drilling off of the california coast, what do we gain by preventing the Sierra Club from using their funds to advocate against this congressman during election season? The SC is an influential and knowledgeable environmental group, many people would find their opinion important in making up their mind who to vote for.

We can say, no, you can't advocate for or against a political candidate as group, you have to do it individually. But than those individuals, each with not enough money to by TV ads and radio time, can't really get their message out in an effective manner. After all, the whole reason people join the SC is so they can pool their resources to advocate for something they believe in.

So, to answer your question, I think we can retool corporate law. And while corporations are "legal fiction" and not endowed with rights by their creator, it can be difficult to restrict the "rights of corporations" without restricting the rights of the people that are part of that corporation.

If I am the employer, I am buying the insurance that pays for the BC.

I have two issues with this statement.

1. IMO oversimplifies the relationship of a person acting in an executive role at a company, to the employees, the corporation, and for that matter the insurer. Businesses are not fiefdoms, and executives are not sovereign autocrats.

In a nutshell, decisions about what goes into an employees compensation are not solely the prerogative of the employer. That is, straight up, part of the deal.

2. This greatly overemphasizes the actual degree of agency and/or responsibility that the employer has in the actual provision of stuff like birth control to an insured person.

The relationship of any member of the Green family, to an actual act of somebody taking a morning after pill, approaches something like social homeopathy.

The distinction between the Greens as people and Hobby Lobby as a legal entity, the amount of Hobby Lobby's overall health insurance contribution as compared to the amount that might find it's way to objectionable birth control services, the number of people who work for Hobby Lobby who might actually take advantage of that coverage, etc etc etc.

In real, practical terms, the degree to which any member of the Green family is being required to "subsidize" objectionable forms of birth control is minute.

NOBODY IS BEING REQUIRED, ENCOURAGED, OR OTHERWISE INDUCED TO TAKE A MORNING AFTER PILL.

There are clear and tangible public health benefits to making access to birth control available to people. The Greens are not the only people involved here, and their moral scruples need to be weighed against the interests of everyone else.

The Greens are making a point, which is fine and is their prerogative. Other folks have their own points to make, and many of those points are just as compelling as the Greens'.

They need to demonstrate why their interests should trump those of other folks.

progressives are fine with coercion as long as people are being coerced progressively.

You're making a reasonable point, but if you're trying to extend that point to mean "as opposed to what every and anybody else does", you're on thin ice.

Everybody has their personal favorite plans for everyone else. Even you, McK.

However, this is different

That may be, but I don't see where you have demonstrated how.

McTx: Whether I discriminate illegally hiring is irrelevant to what benefits I confer on my employees after they are hired. If I hire someone, I am not discriminating against that person.

You speak like a corporation, McKinney: "I discriminate", "I hire". I suppose "progressives" should not be surprised that "conservatives" talk like that, but never mind. Let's assume you are talking from the point of view of a sole prop who employs hundreds of people.

As a sole prop, you are unquestionably a person. You have personal tastes and taboos, and you are entitled to them. If I had my way, you would be free not to hire me due to my religion -- just as I am free not to patronize your business due to your ideology. Personal freedom is a progressive value, despite your cartoonish generalizations.

As a sole prop, you would be free to treat your employees any way you like. No minimum wage, no safety requirements, no health insurance mandates. Knock yourself out.

But if you want to incorporate yourself, you're asking me and my fellow citizens to give birth to a new "person". Sorry to tell you this, but that new "person" gets our DNA, as well as yours. You don't want your Purity of Essence contaminated by "progressivity"? Practice abstinence.

--TP

it can be difficult to restrict the "rights of corporations" without restricting the rights of the people that are part of that corporation.

True and noted as such, however all of the things that bear the name of "corporation" are not alike. They have very different reasons for being, different restrictions may therefore apply.

I have no problem with corporations being allowed to advertise, but I do not mistake that for "self-determination".

that new "person" gets our DNA, as well as yours.

Absolutely and precisely on the money. Well said Tony.

As a sole prop, you would be free to treat your employees any way you like. No minimum wage, no safety requirements, no health insurance mandates. Knock yourself out.

But if you want to incorporate yourself, you're asking me and my fellow citizens to give birth to a new "person". Sorry to tell you this, but that new "person" gets our DNA, as well as yours. You don't want your Purity of Essence contaminated by "progressivity"? Practice abstinence.

I'm responding in the middle of my second adult beverage. Apologies in advance for any offence.

It's a bit of a reach to say that, because someone does business in the corporate form, they surrender their individual liberty to progressive whimsy. But it is consistent progressive philosophy: if you accept anything at all from the gov't, e.g. use of the roads, the fire department, etc, you are all in for whatever else gov't might wish to impose. It's also incorrect to say that as a sole proprietor, which I sort of was until just over a year ago, that I could do as I pleased. I was still bound by minimum wage, OSHA, FLSA and a host of other--mostly legitimate--requirements.

What riles me most about progressives is the lack of *any* defined limit on what gov't can require of an individual. You won't give a bright line on where, for example, my right to own and operate a business can't be limited/infringed/f'd with, etc by your next great idea that will make everything awesome for everyone.

Jesus, it's tiresome. If progressives think something is a good idea, that is the end of the discussion. Period.

Sorry for the rant.

"however all of the things that bear the name of "corporation" are not alike. They have very different reasons for being, different restrictions may therefore apply."

Certainly. And current corporate law is certainly in line with that...that's why there are many flavors of corporations (public, private, nonprofit, etc). I tihnk

"I have no problem with corporations being allowed to advertise, but I do not mistake that for "self-determination"."

Ok, I guess I'm glad you aren't confusing two entirely distinct concepts, but I don't really get what this means. I was bringing "self-determination" that up as part of a hypothetical where restricting corporate speech was tantamount to restricting personal speech to expand on a hypothetical Ugh mentioned. I assume you disagree with or would like to add to some part of that, I'm just lost as to which part.

"You won't give a bright line on where, for example, my right to own and operate a business can't be limited/infringed/f'd with, etc by your next great idea that will make everything awesome for everyone."

I asked you about the First Amendment issue and you passed on it. If you want to talk about rights, have at it. If there is some other source of rights on this issue you want to bring up, feel free.

"If progressives think something is a good idea, that is the end of the discussion. Period."

End of discussion? I'm sure there are plenty of people here happy to continue discussing whether or not the contraceptive mandate is a good idea or not, or whether it is constitutional or not. So I don't see anyone ending discussion.

"but that new "person" gets our DNA, as well as yours."

That's pretty much the basis of all laws. Restricting individual action for societal good.

And again, whether the "good" is good enough and the "restriction" is the least imposing method of achieving the good is where people disagree.

What has bothered me about the comments (and dissuaded me from entering in) so far is that they regularly convolve "can" we regulate corporations in X way with "should" we regulate corporations in X way. Not saying people aren't aware of the distinction, it just seems like people are talking at cross purposes at times.

Jesus, it's tiresome. If progressives think something is a good idea, that is the end of the discussion. Period.

I'm one up on you, so kindly accept my apologies in advance as well.

Nothing unique about progressives as regards imposing their view of what's good and useful upon the rest of the world.

That is all.

Sorry for the rant.

Likewise, and no worries.

I don't really get what this means.

Cool, I'lll break it down for you.

I was bringing "self-determination" that up as part of a hypothetical where restricting corporate speech was tantamount to restricting personal speech to expand on a hypothetical Ugh mentioned.

And I was pointing out that the hypothetical was at best no more than that, because as regards commercial for-profit corporations - the folks who advertise - restricting corporate speech is not tantamount to restricting personal speech.

One's protected under the 1st, one is not. Or well ought not be.

Hope that helps clarify things.

McTx: It's a bit of a reach to say that, because someone does business in the corporate form, they surrender their individual liberty to progressive whimsy.

It is such a reach, in fact, that NOBODY says that.

Make up your mind, McKinney: is "the corporation" a separate "person" from the persons who are its shareholders, or isn't it? You, as person, are not required to provide anything to anybody. Restrictions on the "individual liberty" of a separate "person" that hires its own employees, pays its own taxes, owns its own property, and does not share its liabilities with you, are not restrictions on YOUR "individual liberty".

You can, if you like, try the "first they came for the corporations ..." line, of course. But isn't it a bit too early to Godwin this discussion?

--TP

"And I was pointing out that the hypothetical was at best no more than that, because as regards commercial for-profit corporations - the folks who advertise - restricting corporate speech is not tantamount to restricting personal speech."

Thanks, that is way more clear. I'd agree the calculus shifts between for-profit and non-profit corporations. Talking about political speech (Citizen's United), its more relevant to discuss non-profits, as they are the ones typically engaging in political speech. In that regard, I think the hypothetical is extremely relevant

Restricting just to commercial advertising, I'd say it's clearly something which can be restricted to some extent. The 1st has been ruled to apply to commercial speech, although commercial speech has lower protections. The DC Circuit ruling on tobacco labels is a recent and relevant ruling which is probably a good read on the subject. IANAL, but it was a good crash course in the appropriate law, I thought, and the only recent thing I could really find on the subject:

http://www.cadc.uscourts.gov/internet/opinions.nsf/4C0311C78EB11C5785257A64004EBFB5/$file/11-5332-1391191.pdf

I don't believe the ruling has been successfully appealed, but I'm still checking.

To summarize the document (if you trust my summary): Commercial speech is less protected than other forms of speech, but the 1st does apply to corporations and has for awhile. In terms of citing cases the concept goes back to the 60s at least, I stopped citation hopping pretty shortly:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=475&invol=1

Many of the earlier examples of corporate free speech cases semm to have involved corporate newspapers (such as the New York Times).

I'd be curious to hear views on laws determining what newspapers or other news corporations MUST and CANNOT do.

Would it be constitutional for a law that mandated corporately held newspapers spend a column in support of whichever party currently holds the presidency? Or forbid excessively negative characterizations of congress?

I'm not saying anybody is suggesting we muzzle newspapers...I'm just offering an example where a corporation exercises free speech in what most would consider to be important way.

And again, yes, there are distinctions, I'm just trying to figure out how absolute is the thought of:

"So there is no "can't" with regard to limiting what corporations can do."

Because case law disagrees. Which isn't to say you have to agree with case law (I frequently don't). I'm just curious if that statement (made by hsh, I believe, and similar to other statements made) is actually absolute.

Another relevant linky:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=475&invol=1

And to be clear, IANAL, and if anybody with an actual JD wants to weigh in on my ramblings, I'd appreciate it.

I realize my posts would be way shorter if I didn't repeat myself. Hah. Editing is hard in tiny boxes.

i think the issues involved in this situation are being presented in a needlessly complicated fashion. collaterally, many otherwise intelligent (i think) people are demonstrating a remarkable ignorance about insurance. perhaps it's because some of you have never been part of a group insurance plan or perhaps it's because some folks are being deliberately obtuse in order to bolster their argument. relating to that i have a comment and a question.

first the comment: when you are part of a group insurance plan part of your premium goes to things you may never need or use. with my wife's postal service plan or the plan offered by my school none of the men on the plan are ever going to directly use any of the benefits relating to care by ob/gyns. certainly they might get some benefit from that type of care if their spouse is being covered but the single men and the post-menopausal women aren't going to be using it. similarly the single women aren't going to get a lot of use from the regular prostate exams being paid for by the plans. but that is what group insurance is all about. each individual pays in so that the entire group can benefit whether each individual makes use of all of the options in the plan or not. to argue that each individual ought to be able to separate out their own needs from the group plan and not be required to pay for parts of the plan they don't need is similar to arguing that because one can't stand the idea of paying for food stamps one ought ot be able to direct one's taxes elsewhere, or nsa spying, or military activities, etc.

now the questions. is employment based health insurance a benefit of employment or not? if it is then how can the employer legally forbid its employees from using their benefits to pay for legal activities? can an employer forbid employees' purchase of contraceptives with the pay employees receive? if not, then why can the employer forbid coverage of contraceptives as part of their health insurance benefit? is there anyone here arguing that hobby lobby can legally prevent its employees from paying for contraceptives with their pay? and yet some here are saying that hobby lobby has the right to do so with another benefit of employment which says to me that the arguments are not nearly as logical as those making them would like to believe. if health insurance is different from any other benefit of employment then in what way is it different and why?

Can an employer drop the contraceptive coverage, and give the employees money instead? They'd actually be better off that way, as they could spend it on something else if they didn't want the contraceptives. I seem to recall Hobby Lobby actually offering to do this, and having the offer rejected by the Justice Department. But this seems the exact sort of reasonable accommodation the RFRA normally would require.

My view of 'corporate' rights is colored by the realization that virtually everything in this country is done through corporations today, and this is not by accident. The legal system essentially forces the use of some kind of corporation if you want to do anything larger than a lemonade stand.

Can the government craft a legal system that forces the use of corporations, and then declare that you lose your civil liberties for anything done through a corporation? That's the real question here, IMO. My view of the matter would be quite different if not forming a corporation was a real option for people wanting to do big things.

You, as person, are not required to provide anything to anybody. Restrictions on the "individual liberty" of a separate "person" that hires its own employees, pays its own taxes, owns its own property, and does not share its liabilities with you, are not restrictions on YOUR "individual liberty".

TP, whether I hire in the corporate form or as an individual, sole proprietor, I am subject to the same wage and hour, minimum wage, insuring, Title VII (if I employ more than 15 people), etc. laws as a corporation. The only real difference is that an individual pays a higher rate of income tax and pays self employment tax instead of matching FICA. As a sole proprietor, if still was one, I would be required to offer insurance or pay a fine. I would do the insurance. That insurance, by executive fiat would include BC and the day after pill. I have no moral issues whatsoever and in fact am a big fan of BC. The day after pill, as I understand it, prevents fertilization--if that is the case, no issue. My issues are two: I think executive action to accomplish what never would have passed democratically is generally sucky and seriously so and since this is all a prelude to covering abortion services and requiring people like me to pay directly or indirectly for those services, I am extremely pissed off about it.

I asked you about the First Amendment issue and you passed on it. If you want to talk about rights, have at it. If there is some other source of rights on this issue you want to bring up, feel free.

Julian, my point--admittedly somewhat obscure--isn't about debating rights. Rather, it's that progressives, as far as I can tell, will not limit what they are willing to impose on others, particularly others with whom they disagree. Would you, for example, have a constitutional issue requiring a religious organization to purchase insurance that covered abortion, contrary to that church's long, well established position?

Nothing unique about progressives as regards imposing their view of what's good and useful upon the rest of the world.

Well, can you think of an example where a conservative executive passed a rule that then requires individuals or organizations to perform a specific act that is expressly contrary to that group's principles or beliefs? I can't. The closest I can come is various state legislatures--democratically--trying to wire around Roe, which was not a democratically derived situation. What gets me is that progressives are basically "so what's the big deal, Catholic Church, get over yourself". If find this disregard for others appalling. The manner of getting there, executive decree, is only slightly less appalling.

Thompson--you have the law basically right. The current iteration is that the state should not be in the business of evaluating content to see who is inside or outside permissible limits on political speech. Others would have the state regulate content depending on whether someone is a corporation and whether that corporation is 'for profit'. Then you get into the "legitimate" news organization issue because most journalistic endeavors are for profit and are incorporated. Still though, in the minds of some, there must be a way to let the Times write its editorials but keep Exxon from fussing about something Washington wants to do. Put differently, there is no human endeavor that right thinking people can't usefully regulate and improve.

"Can an employer drop the contraceptive coverage, and give the employees money instead? They'd actually be better off that way, as they could spend it on something else if they didn't want the contraceptives. I seem to recall Hobby Lobby actually offering to do this, and having the offer rejected by the Justice Department. But this seems the exact sort of reasonable accommodation the RFRA normally would require."

I don't think that would work. You're assuming that Hobby Lobby would save enough money from dropping contraceptive coverage that if it were divvied up and handed out to employees, it would be enough to let employees go buy their own health insurance plan that only covered birth control (seamlessly filling in the gap in their coverage).

But I don't think you can buy a health insurance plan that only covers birth control. For one thing, I've never heard of such a thing; googling doesn't uncover one; and economically, I don't see how it could be profitable to an ensurer unless it premiums cost the covered people more than the birth control drugs themselves, since adverse selection would guarantee that the pool of people buying it are all 100% going to be buying birth control.

So under Hobby Lobby's (and your) proposal, the employees would be forced to buy another health insurance plan (on top of their employer-provided plan) that does more than just cover birth control--indeed, it would have to duplicate many of the benefits of their employer-provided plan. Which would mean that the money given to them to buy that additional plan would be inadequate.

"Rather, it's that progressives, as far as I can tell, will not limit what they are willing to impose on others, particularly others with whom they disagree. Would you, for example, have a constitutional issue requiring a religious organization to purchase insurance that covered abortion, contrary to that church's long, well established position?"

1. I would not have a constitutional issue with that, though I know next to nothing about First Amendment law

2. The fact that I don't have a problem with that example does not prove that progressives "will not limit what they are willing to impose on others." The claim is so obviously wrong that I don't see why you keep bringing it up. I will conclusively rebut it for you so that you can drop it and stop embarrassing yourself.

For example, I am willing to let the Catholic Church engage in sex discrimination in who it ordains as priests and nuns. I would not impose Title VII hiring obligations on them for those positions.

I am willing to let churches remain tax free organizations so long as they don't engage in politicking (of course the IRS basically doesn't enforce that rule anyway, but it's a nice idea).

Those are some limits I, a progressive, agree on.

"Well, can you think of an example where a conservative executive passed a rule that then requires individuals or organizations to perform a specific act that is expressly contrary to that group's principles or beliefs? I can't"

What an oddly specific request. Why don't you care if the executive merely enforced such a rule? But I'll oblige you:

Eisenhower enforcing integration in Little Rock. (I eagerly await this rousing game of He's No True Conservative).

And, in the category of enforcing such rules, George W. Bush keeping Don't Ask Don't Tell in place.

It's funny that you make it a point of pride that, according to you, no conservative executive (by which I assume you mean President?) has ever required individuals to act against their beliefs. As though all personal beliefs are sacrosanct.

"You're assuming that Hobby Lobby would save enough money"

I'm assuming nothing of the sort. Hobby Lobby has already made clear they're willing to endure financial damage for their principles. The offer would have to be extra money, and not contingent on any savings. They would simply give the employees enough money to buy the contraceptives, if they wanted to.

"So under Hobby Lobby's (and your) proposal, the employees would be forced to buy another health insurance plan"

No, they wouldn't. Hobby Lobby gives them the money, and if they want contraceptives, they buy contraceptives. If they don't want contraceptives, they buy something else. You don't need to get contraceptives through insurance. You can just buy them with money.

i believe that mckinneytexas is still looking at the questions from the wrong end and would really like to read a response to the points i brought up. let me briefly summarize them--in the first place do you understand what group plan health insurance actually is? do employees have to submit to employer control of their use of job benefits and if they do then what is to prevent the employer from forbidding them to use their pay to buy contraceptives?

"I'm assuming nothing of the sort. Hobby Lobby has already made clear they're willing to endure financial damage for their principles. The offer would have to be extra money, and not contingent on any savings. They would simply give the employees enough money to buy the contraceptives, if they wanted to."

Can you prove this? Do you have any links? Because it doesn't make much sense. Allow me to illustrate:

1) Hobby Lobby objects to being forced to buy insurance that provides contraception coverage. Let's say that buying that insurance costs $10.

2) Hobby Lobby asks that they be allowed to opt for buying a health insurance plan that doesn't provide contraception coverage. Let's say such a plan costs $8.

3) Hobby Lobby offers, however, to pay employees who want contraception a higher salary. The salary will be sufficiently higher such that any employee who wants contraception can obtain the same level of contraception they would have been able to under a plan that covers contraception. Let's assume that this salary boost will cost the company $3 (since you stipulate that Hobby Lobby is willing to take financial damage).

I would be very surprised if Hobby Lobby actually offered something like this. I don't see how such an arrangement helps them assuage their religious concerns--they'd be paying birth-control using employees MORE money that is specifically allocated and defined by its use for purchasing contraceptives. This is just shuffling money around (rather than using it to buy insurance it is given to employees directly). And it would cost the company more.

So to reiterate, can you offer a link suggesting that this happened?

"You don't need to get contraceptives through insurance. You can just buy them with money."

Which kind of contraceptives are you talking about? Do you mean over-the-counter? Because I don't think condoms are what anyone is talking about here. We're talking about oral contraceptives like ortho-tri-cyclen, which are not obtainable over the counter.

If you're telling me you don't need insurance to go to a doctor and get a prescription drug, well, sure, you don't need insurance for that. You just need enormous amounts of cash.

The conscientiously unvaccinated:

http://scienceblogs.com/insolence/2012/08/28/wielding-religion-as-a-weapon-against-vaccines/

I wonder about the legal precedents that will be set if the Green's personal religious preferences are extended to their corporate personhood.

Why would it then be illegal for a corporate horse of a different religious color to exempt vaccination from its employee healthcare coverage, or say, force its female employees to use birth control or the morning-after pill to prevent pregnancy on account of Biblical scripture (converted to personal religious preference) alluding to the non-productive work output of your average pregnant woman.

It occurs to me that providing paid maternity leave to women is another liberal idea which kicked conservatives in the crotch as they stood astride history and yelled "Stop!"

And now we have the audacity to demand paid paternity leave to fathers, since they forgot to wear the condoms we provided through our health insurance schemes.

Yes, yes, straw men, but America is the place where straw men are provided access to the slipperiest legal slopes these a days.

When I convert to Hinduism and open my Hindu pharmacy handing out free birth control to all comers (puns are slippery slopes too), I hope no one minds (to the extent of mandating that I not do so) that my religious preferences include allowing underfed cattle and monkeys throwing vegetables to range freely throughout the open-air store.

Can an employer drop the contraceptive coverage, and give the employees money instead?

How does that solve the Greens' problem?

Pay for insurance that covers birth control, or provide extra compensation to make up for the missing coverage.

Either way they're "funding" the purchase of birth control.

They'd actually be better off that way, as they could spend it on something else if they didn't want the contraceptives.

I might be wrong, but I doubt we're talking about a one-for-one swap of dollars here. The amount of money in anyone's premium used to fund birth control coverage is likely not enough for that person to go buy birth control.

It might buy them a cup of coffee, maybe not even that.

But this seems the exact sort of reasonable accommodation the RFRA normally would require.

This begs the very important question of whether, and in what way, a corporation can be said to "exercise religion".

If you can explain how Hobby Lobby has a religious faith, and exercises that faith, your point might hold more weight.

My view of 'corporate' rights is colored by the realization that virtually everything in this country is done through corporations today, and this is not by accident. The legal system essentially forces the use of some kind of corporation if you want to do anything larger than a lemonade stand.

This is an interesting point, but elides the fact that "essentially forces the use of some kind of corporation" amounts to "provides legal protection from personal liability". Among other things.

Corporations are an attractive form because they offer useful benefits. Tax exemption, protection from liability, etc. Nobody is forced to do anything via the corporate form, they do so because it is to their advantage to do so.

Can the government craft a legal system that forces the use of corporations, and then declare that you lose your civil liberties for anything done through a corporation?

NOBODY LOSES AN OUNCE OF CIVIL LIBERTIES BY VIRTUE OF PARTICIPATING IN A CORPORATION.

What is true is that all of the civil liberties you enjoy as a natural person do not automatically transfer to any and every corporation you happen to participate in.

Corporations do not equate to the natural persons that participate in them. That is their reason for existing. They exist to provide a legal entity that can engage in certain activities as a proxy for the folks who participate in them, but which is, deliberately and by design, legally distinct from them.

As far as I can tell, there is no activity that is pursued via a corporate form that could not also be pursued by a private person or any combination of private persons. The legal eagles among us will surely school me on this if I am wrong.

All that folks would need to do in order to do whatever they like, without the use of the corporate form, would be to give up the benefits that come from using the corporate form.

Also, IMO navarro's comments here are precisely on the money, and I would also be interested in a response(s) to the questions he raises in his 6:38.

"Hobby Lobby offers, however, to pay employees who want contraception a higher salary."

Ok, you still don't get it. That would still, from Hobby Lobby's standpoint, involve complicity, perhaps more than if they just bought the insurance. No, they'd have to pay ALL the employees enough to buy the contraceptives. Then it would be entirely the employee's decision to spend some of their own money on contraceptives.

"If you're telling me you don't need insurance to go to a doctor and get a prescription drug, well, sure, you don't need insurance for that. You just need enormous amounts of cash."

Not actually that enormous, (It's reached the point where dealing with insurance companies is such a hassle for doctors, that some offer a substantial discount for cash customers!)but Hobby Lobby wasn't objecting to insurance that covered going to the doctor, just insurance that covered certain limited forms of contraception. So the only part they'd have to pay for on the side was the cost of the prescription, not the doctor's visit.

To be clear, while I have a vague recollection of such an offer, I can't find any evidence of it. So I'm perfectly willing to admit my recollection is probably faulty. But I still ask, wouldn't such an accommodation be reasonable? And if not, why?

Nothing unique about progressives as regards imposing their view of what's good and useful upon the rest of the world.

Well, can you think of an example where a conservative executive passed a rule that then requires individuals or organizations to perform a specific act that is expressly contrary to that group's principles or beliefs?

Off the top of my head, I can't think of an example that answers the quite specific question you ask. I'll look around, I'm sure they exist.

I could, however, provide volumes of examples of my own assertion.

Last but not least, you are (again) conflating the Greens with Hobby Lobby. Hobby Lobby HAS NO PRINCIPLES AND BELIEFS to be violated.

The Greens are not being asked to pay for anything, Hobby Lobby is. The money in question is not the Greens', it's Hobby Lobby's. It doesn't become the Greens until they either sell the company, or until it is returned as profit from their operations.

It isn't profit until all the bills are paid, including compensating the employees.

If you want to do business as a corporation, you have to play by the rules that govern corporations. If you don't want to play by those rules, you have to forgo the very significant benefits that come from operating as a corporation.

This isn't punishment, or some weird oppressive yoke placed by The Socialist Overlords on Worthy Entrepreneurs, it's government and the law regulating public life to balance the interests of all of the stakeholders involved.

There's nothing progressive or conservative or capitalist or socialist or what-have-you about it, it's how polities function.

The Greens (and apparently you) don't like certain of the rules involved. Quite a number of others no doubt suit you quite well. The same is true of every other person who engages in business.

It's not a questions of anyone being asked to "get over themselves", it's basic freaking civics.

No, they'd have to pay ALL the employees enough to buy the contraceptives. Then it would be entirely the employee's decision to spend some of their own money on contraceptives.

Other than Hobby Lobby having to pay out a hell of a lot more in compensation, I don't see the difference here.

How does contributing to a health insurance plan that covers certain kinds of contraception compromise the Greens' beliefs, but paying employees extra to make up for the lack of birth control coverage not?

In both cases THE DECISION TO USE THE PILL is made by the employee. In neither case is anyone compelled to use any form of birth control.

What's magic about how wage compensation is used vs how insurance coverage is?

"No, they'd have to pay ALL the employees enough to buy the contraceptives."

As I explained, and as Russell re-explained, this sounds economically unworkable. Which is why I asked if this offer actually exists.

"But I still ask, wouldn't such an accommodation be reasonable? And if not, why?"

Don't know, maybe it would be, maybe not, depends on a ton of things about insurance markets I don't know …

But I don't see the point in debating it if no one is offering to do it.

""Hobby Lobby HAS NO PRINCIPLES AND BELIEFS to be violated."

Neither does my car, for that matter. Could the government bar it from driving to church on Sunday, without violating my liberties? Cars, corporations, both are tools for people.

I think the 'liberal' view of basic freaking civics, is that you're entitled to order people around, and if anybody doesn't like it, move to a monastery. (With the, "Until we shut down the monasteries." being left unsaid.) Or maybe Somalia."

Basically, it's your world, we just live in it.

In both cases THE DECISION TO USE THE PILL is made by the employee. In neither case is anyone compelled to use any form of birth control.

Which seems to imply that birth control shouldn't be covered by insurance in the first place.

"Which seems to imply that birth control shouldn't be covered by insurance in the first place."

"Shouldn't be covered"? Why not?

Neither does my car, for that matter.

Your car is not empowered to own, buy and sell property, to enter into contracts, to engage in commerce, or any of the 1,000,000 other things that Hobby Lobby is empowered to do, as a legal entity and actor.

So, none of the rest of us are affected by, or have much of an interest in, you car.

Basically, it's your world, we just live in it.

As mentioned to McK, nothing special about me, or "us". You, and "you", have your own bag of preferences that you'd be equally happy for the rest of "us" to have to live with.

So, no tears please.

Which seems to imply that birth control shouldn't be covered by insurance in the first place.

Actually, no, it doesn't.

If it bugs you that you pay an insurance premium and somebody, somewhere, who is insured by the same company makes use of their coverage in a way you don't like, then don't buy insurance.

If you don't want to take the pill, don't take the pill. Nobody will make you.

I though the purpose of insurance was to cover unexpected medical cost.

No, the purpose of insurance is to cover anything the glorious leader thinks it should cover. If the glorious leader is a Democrat. Otherwise it's to cover unexpected medical costs.

"No, the purpose of insurance is to cover anything the glorious leader thinks it should cover. If the glorious leader is a Democrat. Otherwise it's to cover unexpected medical costs.

I thought the purpose of insurance is to NOT cover expected pre-existing medical costs. If the glorious leader is a Republican. Otherwise it's to cover only the medical costs the glorious leaders of insurance companies decide should be covered.

"Otherwise it's to cover unexpected medical costs."

How are we defining "unexpected"? You don't expect your kid to be a type 1 diabetic, but once she's diagnosed, you expect to pay for her treatment.

Essentially the purpose of insurance is to take a $1000 expense with probability of 0.1, and turn it into a predictable expense of $100. That's all.

"Essentially the purpose of insurance is to take a $1000 expense with probability of 0.1, and turn it into a predictable expense of $100. That's all."

I repeat, how are you defining unexpected? There's insurance for many elective things (e.g. Viagra), so I'm not sure how oral contraception is different.

In a more rational world, expected and elective, along with the relatively inexpensive unexpected medical cost would be paid for from a medical savings account instead of insurance.

"In a more rational world, expected and elective, along with the relatively inexpensive unexpected medical cost would be paid for from a medical savings account instead of insurance."

So what?

Navarro:

Your questions have largely gone unanswered, but I doubt I'm the target. I'll give it a shot from my preceptive, which I doubt is shared by many here.

"is employment based health insurance a benefit of employment or not?"

I would rather it isn't, but here we are.

"if it is then how can the employer legally forbid its employees from using their benefits to pay for legal activities?"

They can't. I don't think anybody made that argument, but I could be wrong.

"can an employer forbid employees' purchase of contraceptives with the pay employees receive?"

No, they can't. Again, I don't think anybody made that argument, but I could be wrong.

"if not, then why can the employer forbid coverage of contraceptives as part of their health insurance benefit?"

I think the sticky wicket here is how people are approaching the problem. You seem to be looking at it as they buy into insurance, with insurance being useful for covering anything. I think many conservatives here and elsewhere are looking at it in terms of insurance has different coverage levels, therefore, insurance is not identical to insurance with contraception coverage. The distinction being paying for a plan that can be used to get free contraception is a more direct enablement (if that's a word, which its not) of contraception than providing wages that can be spent on anything, including contraception.

However, there is an executive action that declares corporations (and sole props, I believe) MUST provide insurance with contraceptive coverage. Contraception, I think we can all agree, is something that is both beneficial to society and also something that conflicts with peoples religious views.

What hobby lobby is asking to do is to not comply with the mandate to provide contraception through a health plan. Not forbid their employees using their wages to purchase contraception, or to use contraception.

You may not see the moral distinction between purchasing insurance through a plan and knowing your employees use their wages for contraception, but apparently the board of hobby lobby does. I don't really either, but I'm loathe to tell people their morals when they seem to have an opinion on them.

So, given case history that suggests corporations do have some first amendment rights (something that many here disagree with), what we're left with balancing is their limited 1st amendment rights with compelling state interest.

And bluntly, I can't imagine something I could care less about. For two reasons:

1) Contraception is readily available, for free, at planned parenthood. Prescription contraception isn't that expensive, I've paid for it out of pocket since I was below the poverty line. I don't see hobby lobby employees suffering tremendously if their insurance doesn't cover it.

2) As I said above, I don't find hobby lobby's moral objection to purchasing insurance that includes contraception that compelling.

Result: Whatever happens, whatever narrow piece of law and case history this gets decided on, I really couldn't care less. If I had to decide the case, I'd probably side with hobby lobby or suggest the compromise that Brett imagined, just because in general I don't like deciding what's moral and if someone is willing to work out a compromise, super. I fully get other people that would side the other way, contraception is important and should be available.

"is there anyone here arguing that hobby lobby can legally prevent its employees from paying for contraceptives with their pay?"

Again, no, I don't think anybody made that argument.

"if health insurance is different from any other benefit of employment then in what way is it different and why?"

I think what makes this case different is that the type of insurance (covering contraception) is being specified. In general, people get paid in dollars which they can use however they want and prior to the ACA health insurance was provided by some employers, with the type of the insurance (HMO, PPO, dental, vision, coverage levels, etc etc) being worked by the employer or sometimes with the employee/union. Which meant if an employer wanted to, say, buy into a group plan that didn't cover contraception, they would be free to so.

Altogether, this is one more reason why I think insurance should be separate from employment.

While I doubt I speak for the "conservatives" of the group, at least you have some answer from someone with a different perspective.

Now, in return, I'd be very interested to hear a response to my questions at 9:57 last night, which I think get to the point on "do corporations have rights?" and the associated "should they have rights?"

Julian:

""Well, can you think of an example where a conservative executive passed a rule that then requires individuals or organizations to perform a specific act that is expressly contrary to that group's principles or beliefs? I can't"

What an oddly specific request. Why don't you care if the executive merely enforced such a rule? But I'll oblige you:

Eisenhower enforcing integration in Little Rock. (I eagerly await this rousing game of He's No True Conservative).

And, in the category of enforcing such rules, George W. Bush keeping Don't Ask Don't Tell in place."

I think those are good examples, but I would point out that Eisenhower was enforcing a ruling of the Supreme Court...in other words, he was enforcing the current law of the land. I think that is probably a little distinct from an executive agency determining that contraception must be part of insurance plans.

Yes, I recognize that the ACA gives them the legal authority to do so, I'm just pointing out a distinction between using the executive authority to compel people to follow the law and creating regulations.

I think DADT is a better example, as its a policy which was enacted in support of a law banning homosexuals from serving in the military (similar to the HHS policy being enforced under the ACA). Of course, the law, and the DADT policy, was staggeringly stupid, and I'm glad we're through with them.

I'd also be glad to be through with the ACA and the contraceptive mandate, so it's an interesting parallel. :P

... compelling state interest.

In all too many cases, "compelling state interest" has come to mean, "Any warm, fuzzy idea we like."

In an ACLU email soliciting protest messages to Hobby Lobby's CEO, they're saying, "He's[David Green] trying to impose his personal religious beliefs on Hobby Lobby's 13,000 employees by blocking their access to contraception."

I guess the ACLU is relying on its First Amendment right to spin the truth.

i appreciate the response from a different perspective, although in many ways our perspectives seem much more similar than either of our points of view are to mckinneytexas who has been the actual target of my questioning. if the objections to the minimum package of coverages required for insurance plans to qualify under the law had been stated in those terms--i.e. objections to the minimum requirements for a plan to qualify-- i would find this overall discussion more sensible but it also wouldn't have the emotional appeal of arguing about the denial of 1st amendment rights.

as for the rights of corporations and whether they should have rights, although i have to this point taken no position on that issue, i would agree that a corporation has the right to conduct all of its legal business under the charter which created it. beyond that i have a hard time buying into the notion that corporations are truly entitled to all the civil rights accorded to actual persons under the constitution. despite the current trend on the high court, it is well established law that corporations do not hold the 5th amendment right against self-incrimination and though the pendulum has swung heavily in the direction of treating corporations as persons i feel it will at least begin to swing back within my lifetime unless the influence of corporations results in the abrogation of the constitution before then. to reiterate, i believe a corporation has the right to engage in its legal business for the benefit of its stockholders and the society which allows it to exist at all.

What an oddly specific request.

That was McK, not Julian, in a response to my assertion that conservatives have their own collection of preferences that they would like the rest of us to have to live with, whether we like it or not.

The "oddly specific" nature of the request was, presumably, to offer an example that was an exact analogy to the case at hand.

The specific act that the Greens has been required of the Greens is to comply, as regards the operations of a company they own, with the requirement that any health insurance offered as part of employee compensation cover birth control products and procedures they object to, on religious grounds.

They have not been asked to practice birth control in any form. They have not been asked to personally support birth control in any way shape or form. They have not been required to provide health insurance as a benefit, if their conscience was sufficiently aggrieved they could elect to not do so.

Health insurance policies under the ACA must include coverage for birth control. If the Greens want to offer health insurance to their employees, those policies must include coverage for birth control.

Basically, what the Greens object to is that money that is under their control, through their ownership of Hobby Lobby, is going to be spent on some specific forms of birth control that they don't like.

To address McK's question, if you need me to enumerate all of the things that I am required, by force of law or executive fiat, to contribute to that I find morally objectionable if not repugnant, we will be here for days. It's a very, very, very long list.

And many of those things flow from conservative policy preferences.

You all, by whom I mean conservatives, have your own vision of what the world should be, and it doesn't look like mine. And, you would be more than happy for me to be required to live in it, if you could find a way to make that happen.

"Health insurance policies under the ACA must include coverage for birth control."

Health insurance policies under Administration regulations must include coverage for birth control. The ACA itself includes no such requirement. Indeed, it is extremely unlikely it would have passed if it had, the mandate being so controversial, and the ACA barely passing even without it.

In his world, BC is a good thing and it will be made available and anyone who disagrees can just learn to live with it

In his world, guns are a good thing and there will be no restrictions on them and anyone who disagrees can just learn to live with them.

see how easy that was?

If progressives think something is a good idea, that is the end of the discussion.

don't like it? win some elections; that's how the country works.

"In his world, guns are a good thing and there will be no restrictions on them"

Oh, come on: To make for a good analogy, a Republican administration would have to promulgate, in the name of a crime control law, a mandate that employers provide their employees with firearms. Not just lift restrictions.

I mean, 13 year old girls can get Plan B without telling their parents, do you think contraceptives are anywhere NEAR as restricted as guns?

how many people did plan B kill last year?

guns kill people. that's their primary purpose.

plan B prevents unwanted pregnancies, which is a benefit to everyone.

but we have to live with guns because "conservatives" say so. tens of thousands dead every year. and we get to, if we're lucky, live with it.

requiring that our fncked up insurance system make a safe drug available to whoever needs it: a monstrous imposition on the freedom of everyone!

navarro:

" if the objections to the minimum package of coverages required for insurance plans to qualify under the law had been stated in those terms--i.e. objections to the minimum requirements for a plan to qualify-- i would find this overall discussion more sensible but it also wouldn't have the emotional appeal of arguing about the denial of 1st amendment rights. "

I think the problem is both those aspects are convolved. I think, and I wouldn't speak for McK or Brett, but much of the objection is that the necessity of this requirement doesn't compel ignoring 1st amendment protections, even if they are limited in the context of corporations.

"as for the rights of corporations and whether they should have rights, although i have to this point taken no position on that issue"

I appreciate the response, and I wasn't trying to call you out. I apologize if it came across that way.

"right to conduct all of its legal business under the charter which created it. beyond that i have a hard time buying into the notion that corporations are truly entitled to all the civil rights accorded to actual persons under the constitution"

What about corporate news organizations? Can they be mandated or prohibited from certain speech in a constitutional way?

"despite the current trend on the high court"

As I pointed out, at least some of those protections have case history going back at least to the 60s. Maybe that is part of the "current trend" but seems like a longer trend to me.

"it is well established law that corporations do not hold the 5th amendment right against self-incrimination"

That's interesting, especially considering that 1st amendment protections have been applied, albeit in a limited capacity. Do you know case law for that? A central issue here is what constitutional rights corporations have, and to what extent. It's certainly an interesting question, and I appreciate you engaging on it.

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Whatnot


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