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March 20, 2014

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nobody objects to the particular drugs if they're prescribed for an actual medical treatment, only if prescribed for BC/abortion.

Is your claim here that birth control and abortion are not actually medical applications for the products in question?

I just don't believe that it is realistic to dismiss the other side of the argument because it is the "same thing" as minimum wage laws. Because it isn't. remotely. the same.

Look, I'll argue your side of it.

What makes mandated coverage for Plan B, IUDs, etc., different from minimum wage is that nobody has any particular religious objection to paying a minimum wage.

That's the difference.

If we're opening the door to for-profit corporations being exempt from regulatory mandates due to the religious convictions of their owners and/or management, we should be prepared for the door to be opened quite wide.

I cited B&H Photo upthread because they are currently being sued for not allowing women to work on the sales floor.

They don't allow women to work on the sales floor because the company is owned by very observant Satmar Hasidim, and the Satmar Hasidim don't believe that men and women should mingle publicly.

When they sit at temple, they sit apart. When they ride the city bus, the men sit in front and the women in back.

They do this because their religious convictions demand it.

And, when they hire women to work in their photo store, they don't let them work on the sales floor.

Should B&H be exempt from equal opportunity laws? If not, why not, if Hobby Lobby is exempt from the health insurance coverage mandate?

If they should be exempt, how far should religious exemptions go?

If the health insurance mandate is fair game, why aren't hiring and job assignment regulations fair game?

If those are fair game, why aren't public accommodation laws fair game?

If I, as an employer, have religious objections to how income taxes are spent by the government, why can't I refuse to participate in their collection via withholding?

I agree that, as a practical matter, the birth control mandates in the ACA are not the biggest issue on the block. The products are readily obtainable other than through insurance, and their cost is not especially burdensome.

What is going to be a nightmare is sorting out if, when, and to what degree for-profit companies are indistinguishable from their religious owners or managers.

If Hobby Lobby prevails on 1st Amendment religious expression grounds, the precedent will be set that the religious beliefs of the owners and / or managers of a corporation belong to the corporation as well, and in fact that they trump the interests of everyone else who holds a stake in that corporation, including the public at large.

It'll be a mess.

If Hobby Lobby prevails on 1st Amendment religious expression grounds

Which I personally find extremely unlikely. I think they will prevail on a narrow reading of the RFRA.

Or maybe they won't, I don't care very much either way.

But I really doubt a broad ruling in either direction. I think it will be an interesting ruling, but I doubt one with broad impact.

"Is your claim here that birth control and abortion are not actually medical applications for the products in question?"

Would you assert that assisted suicide is a medical application for barbituates, just because you're trying for a biological effect?

Would you assert that assisted suicide is a medical application for barbituates, just because you're trying for a biological effect?

I'm sorry, did you answer my question?

I think they will prevail on a narrow reading of the RFRA.

What possible reading of the RFRA would *not* be based on 1st Amendment freedom of religion?

The RFRA itself is based on 1st Amendment freedom of religion.

Brett seems to have forgotten the concept of a medically necessary abortion as well as the fact that some women cannot safely become pregnant. But I'm sure Hobby Lobby will be able to sort all of that out on behalf of their heathen employees, despite being unaware that they were violating their religious convictions for years before the ACA alerted them of it.

Brett also seems to have forgotten that birth control pills and other products for plain old bog standard *birth control*, even in the absence of unusual or extenuating conditions, are normally obtained by being prescribed by a physician, and are normally used under the direction and advice of a physician.

How that is different from any other medical application escapes me.

Perhaps he considers birth control to be the equivalent of assisted suicide.

I really doubt a broad ruling in either direction. I think it will be an interesting ruling, but I doubt one with broad impact.

IF they rule for Hobby, I agree that they will try for a narrow ruling. But I suspect that the lower courts will construe it quite broadly. Meaning that the issue will be back in their laps fairly soon. Which is one (unstated intheir opinions) reason why I suspect that they will rule against. Narrow rulings seems to be harder to craft successfully these days.

Narrow rulings seems to be harder to craft successfully these days

They can always try inserting a ""Our consideration is limited to the present circumstances" clause. It worked so well last time.

Marty: If I pay you and you buy bc then I haven't had any part in that decision. If I provide hc, that covers bc, then I have done something actively to enable something I believe is wrong.

Paying people in cash isn't "doing something actively?"

IF they rule for Hobby, I agree that they will try for a narrow ruling.

Roberts is sending up smoke signals about limiting the exemption to subchapter-S corps, and leaving the question about publicly traded corps "for another day".

About 4.5 million S corps in the US as of 2007. Most are single owner-operator, with no employees, but some (including Hobby Lobby) employ lots of people.

Roberts is sending up smoke signals about limiting the exemption to subchapter-S corps,

That would be rather ridiculous, not that that would keep him from doing it.

"Brett seems to have forgotten the concept of a medically necessary abortion as well as the fact that some women cannot safely become pregnant."

I assume you were driven to this conclusion by my reference to self defense in response to the gun sale analogy?

The RFRA itself is based on 1st Amendment freedom of religion.

Yes, but the text of the RFRA coupled with the Dictionary Act extend 1A protections to corporations (arguably, currently under discussion, etc etc).

The USSC could rule the RFRA applies and extends 1A protections to Hobby Lobby without ruling that 1A protections exist for Hobby Lobby in the absence of the RFRA.

In other words, the USSC could very easily avoid making a claim on whether corporations have 1A protections based solely on the Constitution, but that congress, through the RFRA, extended corporations those protections.

In other words, the USSC could very easily avoid making a claim on whether corporations have 1A protections based solely on the Constitution, but that congress, through the RFRA, extended corporations those protections.

IANAL, but this seems like a good point.

We'll see what happens.

The Dictionary Act provides an easy out where it says "unless the context indicates otherwise" a person include a corporation. It shouldn't be too hard for the Court to conclude that in the context of 1A protections for religion, "person" means an individual only.

Which is one (unstated intheir opinions) reason why I suspect that they will rule against.

Quite possibly, I suppose. I don't claim to have special insight into how their minds work.

I think it would be an extremely narrow ruling either way. Even if they rule against HL, I don't think they will just go along with the government's theory in this case.

But we'll see. I'm curious to see what they decide the case on, and how they structure the opinion.

It shouldn't be too hard for the Court to conclude that in the context of 1A protections for religion, "person" means an individual only.

Yeah, they certainly could. That doesn't fly in the face of logic for me.

It gets a little more complex because there is already case law saying the RFRA applies to non-profit corporations. So they would have to either overturn existing case law or say a line exists between profit and non-profit.

Which strikes me as a slightly harder argument. But doable.

I mean, Roberts is talking about drawing a line at S-corps (Thanks russell, hadn't seen that yet), so clearly they think they might be able to draw an arbitrary line.

But I think more likely, if they decide to rule against Hobby Lobby, it will be on grounds that the BC is a compelling government interest and ignore the question as to the extent of the RFRA. Narrow ruling, easy to write, doesn't open cans or worms or anything else.

But, yeah, it'll be interesting to see the opinion(s).

And however they rule, the most interesting reading may be the dissenting opinion(s), followed by the cuncurring opinion(s).

thompson: It gets a little more complex because there is already case law saying the RFRA applies to non-profit corporations.

I was unaware of that, but I don't see SCOTUS thinking twice of overturning lower court precedent it disagrees with.

Narrow ruling, easy to write, doesn't open cans or worms or anything else.

The thing is, I think some of the justices will be delighted to open that can of worms.

I could be wrong.

Also, here is where I saw the Roberts thing.

Russell:

Thanks for the link.

Ugh:

I was unaware of that, but I don't see SCOTUS thinking twice of overturning lower court precedent it disagrees with.

IANAL, so maybe I'm missing something. But if I understand correctly, the USSC has previously extended the RFRA to corps:

I'm getting this from the 10th circuit opinion on the HL case:

http://www.ca10.uscourts.gov/opinions/12/12-6294.pdf

Near the bottom of page 27 there is reference to a case that was affirmed by the USSC: http://en.wikipedia.org/wiki/Gonzales_v._O_Centro_Espirita_Beneficente_Uniao_do_Vegetal

Although I admit I haven't dug into those opinions specifically, but am relying on the interpretation in the 10th circuits opinion.

But if I understand correctly, the USSC has previously extended the RFRA to corps

In Gonzales v O Centro Espiritu, the corp was a church.

I thought the name had some mildly religious overtones.

thompson - thanks. Seems like they may need to go a different route or overrule their own precedent, which they are considerably more reluctant to do.

Although I don't see any ruling that says "RFRA applies to non-profit incorporated entities" but maybe it is buried in there somewhere (or elsewhere). Or perhaps everyone just assumed that RFRA applied because, as russell notes, it was a church.

Or perhaps everyone just assumed that RFRA applied because, as russell notes, it was a church.

Drawing the line at a church is another angle they could take. EG: It applies to corporations that are churches but not beyond, etc etc. There are a lot of lines that could be drawn.

But considering this is all turning defining "person" in the context of the RFRA, it gets a little hairy to say: "person" clearly means natural humans and corps that are churches but not other corporations.

But maybe that's what they'll say.

But considering this is all turning defining "person" in the context of the RFRA, it gets a little hairy to say: "person" clearly means natural humans and corps that are churches but not other corporations.

We already make quite crisp distinctions between different kinds of corporations, based mostly on the purpose for which they were created, and we already grant an exemption on the birth control mandate to corps that are constituted specifically for religious purposes.

That part is not hairy at all, we do it now.

The issue here is whether to extend the same to for-profit corporations if their owners have specific religious scruples.

Open sesame:

http://www.washingtonmonthly.com/political-animal-a/2014_03/let_us_have_our_own_laws049668.php#

Within ten years, we'll each have our own individual laws.

I can't wait, because social and corporate conservatives are not going to like my laws and the invisible boundaries demarcating where their laws end and mine effing start.

There's not going to be any DMZ in between either.

The buffer zone will be the length of the barrel, and maybe a silencer, on my weapons.

Within 30 years, each American will have their own individual weather as well, on account of freedom.

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