Hobby Lobby and SCOTUS Thread

by Ugh

The glorious U.S. Supreme Court will issue its decision in the Hobby Lobby case this morning around 10am.  SCOTUSblog will have live coverage.

Hard to call this one.  I can see 5-4 for the Hobby Lobby, or 5-4, maybe even 6-3 for the other side.  More likely, given the various issues, it will be some sort of split between the two parties.  

Feel free to discuss this or any other SCOTUS case/issue (will Ginsburg retire this summer?).  The opinion on the recess appointment case that was being discussed in another thread is here.  Overall, that one seemed reasonable to me.

UPDATE:  Hobby Lobby wins 5-4, although not without some qualification (it seems).  Opinion will eventually be posted here.  

Comments

[russell]

i'm thinking hobby lobby prevails, 5-4. and, from there, things will get weird.

we'll see in a few minutes.

[Ugh]

Weird is correct. This amicus brief spells out some interesting business issues (pp 2-3 for a summary, pp8-9 of the pdf).

[Countme-In]

I'm praying the Court rules against Hobby Lobby, but since I'm merely an individual conscience, not a corporate one, I expect to be ignored by the current made-up American Gods.

[Countme-In]

If Hobby Lobby wins a corporate right to religious convictions, I expect corporate management should be subject to in-your-face parking lot/sidewalk counseling with no buffer zones regarding their attitudes about birth control, as we kind of mix it up with all of these new sh*t laws.

I know the NRA and gun show attendees across the country aren't going to like affectionate, open carry liberals getting up close and personal with AR-15s sans buffer zones for some quiet trigger warning words of counsel (through clenched teeth) regarding the former's arming of the murderers of kindergarten fetuses and the adult fetuses who teach them.

It's all going to come down very hard.

[cleek]

if Hobby Lobby wins, i'm going to invent a religion and claim my S-corp is dedicated to its precepts.

[Ugh]

Apparently Alito wrote Hobby Lobby, so it seems they have won. No official word yet though.

[russell]

SCOTUS blog says Hobby Lobby prevailed, 5-4.

Where's my cookie?

Also on SCOTUS blog - the decision is very narrowly tailored. Only closely held corps can claim religious exemptions on the basis of freedom of religion.

There also appears to be language to the effect that the decision *only* addresses the contraception mandate - other covered medical procedures that might provoke a religious objection, such as transfusions or vaccinations, are *not* included in the decision.

I have no idea what possible legal basis there might be for not extending this to those, however. It'll be interesting to see how the Supremes dance around that one.

In any case, IMO the next few years are likely to be good ones for attorneys who want to bring religious exemption cases.

[russell]

Here is the opinion.

[Countme-In]

THIS could be an instance of exercising Constitutionally-protected corporate conscience, too, given the murderous new religion the Republican Party seems intent on shoving down our throats:

http://talkingpointsmemo.com/edblog/blackwater-knocked-down-probe-by-threatening-to-kill-investigator

Look, yet more proof the Republican Party is transforming itself into Murder Incorporated in order to take better advantage of imaginary yet expansive corporate freedoms:

http://talkingpointsmemo.com/muckraker/lepage-maine-sovereign-citizen

Notice again in that link, and the previous one, the threats of murder, as in the Cliven travesty, all by Republican operatives, gone unconfronted, unpunished, ignored, unlike the Skittles reach-around of our swarthier classes, which draws gunfire immediately from the privileged diapered classes of right-wing gun punditry.

They are going to love my fresh legal reasoning which holds that gunfire, especially the ra-a-tat-tat variety, is both money and speech protected by both the First and Second Amendments.

I know I could make that reasoning the law of the land, given the sh*thead small dicked riot of anti-American vermin we've stood by and allowed to seize this country's institutions.

Like Dick Cheney, I believe cop-killer bullets are merely a conversational gambit, while bird shot is mere small talk, all Constitutionally-protected when and where and in whatever direction I choose.

We need a pussy riot of up close in your face, unbuffered concealed carry counseling with all of the above miscreants to put things right.

We should shoot our weapons into the air and consider the bullets to be the words of prayer, directed as petition at God's bullet-proof vest.

[Doctor Science]

Apparently Ginsburg's dissent (which she is reading aloud as I type) calls the majority a "decision of startling breadth", though Kennedy says no.

Majority says: "This decision concerns only the contraceptive mandate and should not be understood to mean that all insurance mandates, that is for blood transfusions or vaccinations, necessarily fail if they conflict with an employer's religious beliefs."

But why? Dear lawyers, plz explain the logic here.

[bob_is_boring]

Hm.

So: if I can demonstrate that a law -- any law -- is based solely on implicit, explicit, or otherwise made-up religious principles, am I free as an atheist to ignore it?

Restrictions against murder? Basic part of any social compact (commandments or no).

Blue laws regarding liquor sales on Sundays? 100% detritus based on the erstwhile beliefs of devotees of the cult of invisible magic sky carpenters (or so I am led to believe - and not even in their book, by the way). My [wholly imaginary] alcohol-purveying business should be free to blow off such laws completely.

No?

[cleek]

i suspect all the "conservatives" lauding this one will be singing a very different tune the first time a Muslim business tries to utilize it.

[cleek]

explain the logic here

what's Latin for "Because I Said So" ?

[Berial]

Perhaps: "This decision concerns only the contraceptive mandate and should not be understood to mean that all insurance mandates, that is for blood transfusions or vaccinations, necessarily fail if they conflict with an employer's religious beliefs.", isn't saying those things are exempt, but just means they'll arrive at the same decision for those other things too but you'll have to get them here first. Basically its just a jobs program for high payed corporate lawyers?

[Countme-In]

As a taxpayer, the thought of Samuel Alito or his children receiving blood transfusions at my expense via the Federal Employees Health Benefits Plan offends my religious sensibilities, newly convicted as a result of my interpretation of obscure verses in the Book of Dudewhatthef*ckaromney.

Exception should not be made for Cliven-connected militia members who show up at hospitals that receive federal monies with massive blood loss from gunshot wounds.

Further, religious convictions now direct me without buffering to protest allowing conservatives of all stripes to donate plasma, human organs, semen, and eggs (even if I need them) on account of the risk of transmitting the Republican virus into the Nation's precious bodily fluids supplies.

[Countme-In]

what's Latin for "Because I Said So" ?

ipso saidso.

"i suspect all the "conservatives" lauding this one will be singing a very different tune the first time a Muslim business tries to utilize it."

Ya mean they won't mind Sharia Law strictures regarding birth control even in states where they've made such law illegal?

[Countme-In]

As a form of non-buffered counseling in Hobby Lobby parking lots directed at the company's execs and Board Of Directors regarding methods of contraception, I think I now have the constitutional latitude to let these fish do the talking:

http://www.sfgate.com/news/slideshow/Things-you-should-worry-about-but-probably-81903/photo-6017653.php

[Tony P.]

But why? Dear lawyers, plz explain the logic here.

IANAL, but the logic seems plain enough: corporations that are Christian -- but only the right kind of Christian -- have the same Constitutional rights as human beings. Christian human beings, I mean.

--TP

[Ugh]

Doc Sci: But why? Dear lawyers, plz explain the logic here.

See pp45-49 of Alito's opinion. Essentially, those cases aren't before us and, further, there isn't any evidence (before the court) that there will be challenges to, e.g., a vaccine mandate, even if there were there may be different government interests at stake and a mandate in those cases may in fact be a least restrictive means.

The last is rather rich because one of the examples the Court uses is that the government could just assume the cost! That, it seems, will always be the case for any religious objection.

[Julian]

"what's Latin for "Because I Said So" ?"

Ipse dixit: "he, himself, said it"

[Countme-In]

Does this also mean that Hobby Lobby employees of a certain Native American religious persuasion may imbibe of peyote buttons while on the job, or is just one religion now established?

See Charles Pierce and his friend James Madison in the post now up, entitled "The Ladyparts Thing".

[Tony P.]

Remember when Sandra Day O'Connor appointed Dubya president? That ruling, too, shamefacedly (or perhaps brazenly) purported to be "narrow". "We rule that Dick and Dubya belong in the White House," said the SCOTUS, "but don't quote us".

"Narrow" rulings can have enormous consequences, and anybody who pretends otherwise needs to review recent history. Except Justices of the Supreme Court, of course. You can't teach them anything.

--TP

[Snarki, child of Loki]

And so, Alito and his band of fellow Opus Dei memebers, decide that corporations can have religious belief.

In spite of universal agreement (including atheists) they have NO SOUL. They do not draw breath, they act in many places at the same time, yet exist no where in particular. They have no body, and do not speak but through the mouths of those they control. They have no natural lifespan, but are in principle immortal. Most are amoral, some are actively evil, a few may be beneficial.

So let me ask the following question: if you list the characteristics (as above) of a CORPORATION, and also the characteristics traditionally ascribed to a DEMON, is there not a large degree of overlap?

Alito et al should be excommunicated for worshiping and empowering DEMONS in our world.

[wj]

To all the lawyers here, may I reiterate Dr S's question:
What possible legal difference is there between contraception and vaccination? How can mandating one be legally permissable and mandating the other not?

[russell]

Should B&H Photo, a closely held corporation owned by conservative Hasidic Jews, be required to observe the law when it comes to hiring and paying women?

The list could be quite long.

Closely held private companies in the US include Bechtel, Cargill, Publix, Pilot Corp (who in turn are part owners of Flying J truck stops), Deloitte Touche, Hearst, S.C. Johnson, Mars, and good old Koch Industries.

So, we're not just talking about mom and pop operations.

[bobbyp]

Lemieux pretty much destroys the majority holding here.

Coupled with the Harris decision, the naked partisanship of this Court should be patently obvious to everybody. Hobby Lobby as Tony P. stated above, is merely following conservative precedent, i.e., "pulling it out of you ass" as established first in Bush v. Anything Remotely Resembling Principle.

I have no big problem with partisanship. Like the rending of garments over the death of the filibuster, one can only hope that when a Liberal majority is running things on the Court that they are as nakedly and viciously partisan as the current majority is, because they have demonstrated repeatedly that they could care less about principle.

Damn them to hell.

[Ugh]

What possible legal difference is there between contraception and vaccination?

Alito would say that there (might) be a difference in the "least restrictive means" to accomplish the asserted government interest. So, for vaccinations, we need everyone vaccinated for public health reasons and to do that we have to mandate vaccination coverage!

[Marty]

Lemieux falls short before he gets started:

The owners of Hobby Lobby and the other litigants want to have it both ways, receiving the protections of a corporation when it comes to financial liability, but remaining individuals when it comes to the question of whether they have to comply with neutral legal requirements. This argument doesn't make any sense. Or it does

[Doctor Science]

Marty:

Cite/link? Lemieux links to his more detailed arguments, where are yours?

[Marty]

His argument is akin to: they want to paint their house red AND have running water, that doesn't make any sense. Or it does. The two things he is comparing bear no relationship to each other.

[Hartmut]

There are religious groups that oppose vaccination. In the not too distant past that included the Roman Catholic Church. Jehovah's Witnesses and Christian Scientists are just the best known ones that still keep to that. There was also once an almost universal (Christian) opposition to pain medication during child delivery (based on Genesis). I do not know which churches still keep that as part of the doctrine but there are individuals that do (including women and not just nuns).

[wj]

for vaccinations, we need everyone vaccinated for public health reasons and to do that we have to mandate vaccination coverage!

Except, Ugh, that herd immunity will be sufficient to cover a couple of percent of the population not vaccinated. Provided everybody else is -- and the number of people with religious (as opposed to scientific ignorance) objections to vaccination is not that large.

Contraception, in contrast, does not feature herd immunity. ;-) Which would actually seem to mean that there is a better case for a vaccination exemption than for a contraception one. Unless, apparently, one is Justice Alito.

[Countme-In]

More like Hobby Lobby wants to paint female employees red who require birth control and then disallow them from using the running water in the company bathrooms to wash the scarlet letters off.

Male employees may f8ck with impunity and spread or contract STDs and/or impregnate their partners no questions asked and I presume the health plan will cover the treatments, but their female counterparts must look elsewhere to protect themselves against either STDs or pregnancy, should they desire such protection, or is the company going to institute a pox check on employee medical visits?

It is still not clear to me if female employees whose doctors prescribe the various birth control methods for collateral medical purposes outside of preventing pregnancy are prevented from having those measures covered by the health plan.

[bobbyp]

The two things he is comparing bear no relationship to each other.

Wrong and basically irrelevant. They are related insofar as they bear on public policy. Plaintiffs argue they are both entitled to limited liability protection (which human persons cannot have as humans) and relief from an undue burden on their religious conscience (a property which corporations cannot have).

They basically want US to let THEM decide which hat they are entitled to wear and when it can be worn.

So tell me, are corporations "persons" with religious consciousness or legal fictions we grant special properties to in order to facilitate commerce?

You have to pick one. You can't have it both ways.

[Marty]

"Male employees may f8ck with impunity and spread or contract STDs and/or impregnate their partners no questions asked and I presume the health plan will cover the treatments, but their female counterparts must look elsewhere to protect themselves against either STDs or pregnancy, should they desire such protection, or is the company going to institute a pox check on employee medical visits?"

I think women with std's are also covered. The real question is if they object to male birth control. Will vasectomies be covered? Or is it more finite than even that, is birth control that precludes fertilization ok while after the fact birth control is not? What did we decide here?

[russell]

The two things he is comparing bear no relationship to each other.

Actually, that's sort of the point.

They aren't the same. Corporations are capable of owning property, engaging in commercial activity, entering into contracts, and otherwise doing things that potentially put them at risk of financial liability. That is why they were invented, and is why they exist.

They are not capable of exercising religion. The people who own a corporation are capable of doing so, the corporation itself is not.

The court has recognized such a capability in the corporation, because they say it's not possible to distinguish between the corporation and its owners in the case of closely held corps.

The distinction is made quite crisply in the case of financial liability.

Hard to see how that is not having it both ways.

Except, Ugh, that herd immunity will be sufficient to cover a couple of percent of the population not vaccinated.

Maybe, maybe not.

[Countme-In]

Regarding vaccination, perhaps the long game in the developing conservative zombie apocalypse is to eventually outlaw vaccination mandates to prevent the rest of world's population from protect itself against the spreading conservative pathogen.

https://www.youtube.com/watch?v=Md6Dvxdr0AQ

[Marty]

No, bobbyp I don't. The answer to both can be yes. In the case of the courts decision they specified companies where limited and identifiable individuals(closely held), people, held the ownership and make the decision. They can have the financial protection, provided to stimulate business formation, without the imposition of an undue burden on their religious freedom, a fundamental right of persons in our country.

There is not one thing inherently contradictory in that.

[cleek]

The two things he is comparing bear no relationship to each other.

they certainly do.

when the owners of a company cause the company to do something, they are not acting as individuals. they are acting as employees of the corporation. that's the entire point of a corporation - to create an entity that exists separate from the owners in order to shield the owners and investors from personal liability. a corporation is not the owner. the owner is not the corporation.

but, HL wants it both ways. they want to hide behind the corporation when it benefits them, and they want to be the corporation when that benefits them.

they're a bunch of frauds.

[Countme-In]

I suspect some religious conservatives dislike the word "mandate" because it sounds gay.

[Hartmut]

Also, Hobby Lobby included birth control in the past in their health plan and suddenly found it objectionable after it became mandatory. Cue Casablanca gambling reference.

[cleek]

without the imposition of an undue burden on their religious freedom

hey nice can you opened up there. why just lookit all them worms!

[Marty]

I think, not to go too tangential, that the concept that all corporations shield the owners from any financial liability should be debunked. It does limit the liability in many areas, but a large number of the owners of these companies have/had all of their personal assets mortgaged against lines of credit etc. To ensure the survival of the company. As they get successful the company has the money, good for them.

[bobbyp]

Marty,

1. The Owners are not, legally, the corporation. The idea that a corporation should have "religious freedom" is simply nonsensical. See Cleek's comment.
2. The Owners are not "unduly burdened" in any meaningful sense. See Cleek's comment.

This holding is a farce on just about any level one choses to look at it. It is a nakedly political holding based on pure f*cking air (PFA).

Lemieux argues this persuasively.

[russell]

They can have the financial protection, provided to stimulate business formation, without the imposition of an undue burden on their religious freedom

The burden here is being required to pay for insurance that might be used by somebody to pay for a medical service that the Greens find objectionable.

Who is paying for the insurance?
The Greens?
They are, personally, cutting checks?

Another issue of interest here, raised by Charlie Pierce here, is the degree of subjective judgement required to decide what is, and is not, an undue burden.

So, for example, requiring the Greens to pay for insurance that somebody might use to pay for something they don't like - an undue burden.

Expanding a ski resort onto land the Native Americans consider sacred - not an undue burden.

Transfusions and vaccinations, which conflict with the beliefs of Jehovah's Witnesses and Christian Scientists - not likely to be an undue burden.

Quakers who do not want to pay taxes for warmaking and other purposes they find abhorrent - not an undue burden.

How does the legal system pick and choose which beliefs deserve protection, without crossing the line into an establishment of religion?

RFRA for me, but not for thee.

[Tony P.]

I have a financial, or perhaps logistical, question:

How does Greedco Insurance price a group policy for Religiocorp that excludes sinful meds, devices, or procedures? Greedco's actuaries have worked up a group rate of $X/employee for garden-variety coverage. The god-botherer special will come to $X+/-epsilon per employee. What happens if epsilon is positive?

I say "if" but, knowing the ways of Greedco, "when" might be more accurate. It will be fun to see whether Religiocorp stands by its deep devotion to its faith, in that case.

--TP

[Countme-In]

I'd like to know what kind of hobbies Hobby Lobby thinks their female employees are up to in their free time.

I wonder if David Koresh, had he lived and opened armed temples throughout the Red States and then run for Congress, would have prevented his teenaged female acolytes from accessing birth control through his Waco for Wackos health plan?

Had the government mandated that the Jim Jones cult not fed cyanide to their flock during communion, which one would have outraged the religiously sensitive the most, the government mandate or the poisoning.

Or, instead, would Samuel Alito and company strike down the government's mandate that the cost of the cyanide must be covered by the cult's health plan because that was one step beyond the pale for Jones' sensitive religious convictions, but it would be O.K. if cult members purchased the cyanide themselves to be used on their own time?

I'd ask him, but there is a 220-foot buffer zone between his neck and my hands, I mean, bullhorn.

[russell]

I think, not to go too tangential, that the concept that all corporations shield the owners from any financial liability should be debunked.

Also not to go too tangential, but you are conflating different kinds of financial risk.

The issue in the Hobby Lobby case is that the court has found that the Greens' personal religious scruples must be recognized in the corporation they own. The corporation, because it is closely held, somehow inherits their 1st A rights of free exercise of religion.

The right is being recognized *in the corporation*, not in the Greens. There was never any question of the Greens' *personal* right of free exercise.

To my knowledge, that right has not been recognized in for-profit corporations before. My understanding is that there is a significant body of law that has found the opposite.

That's the novelty.

It's going to be a big ugly mess sorting it out, and doing so is going to involve a lot of extremely fine hair-splitting to decide what religions deserve protection, what activities constitute an expression or exercise of that religion, how much of a burden is too much, and exactly how strong of a state interest is required to tip the scale.

None of that is going to be clean black letter law. It's going to be every kind of squirrelly subjective BS you can imagine.

And IMVHO it's going to be inherently impossible for the state and the courts to engage in that squirrelly subjective BS without crossing the line into establishment of religion.

Some practices will be granted exemptions, from who knows what kinds of laws, and other practices will be considered simply too fringe-y and woo-woo to get equal treatment.

Birth control - undue burden.
Vaccination - meh.

All so that the Greens aren't required to own a corporation that pays for insurance that somebody, somewhere, might use for something they don't approve of.

As I have mentioned every time this comes up, I'm sympathetic to the Greens' situation, but (a) the erosion of the distinction between for-profit corps and the people who own them, and the recognition of every kind of sacred personal right in for-profit corps is going to be freaking pernicious, and (b) sorting out the boundary between commercial activity and the exercise of religion is going to be a unending freaking ugly mess.

Good time to go to law school.

[wj]

But Count, those examples you cite weren't really Christian religions. So their "religious objections" to laws against their practices would have had no significance for the Court.

[Countme-In]

This tweet from Erick Dicklessson, picked up at Sullivan's joint:

Erick Erickson ✔ @EWErickson
Follow

My religion trumps your “right” to employer subsidized consequence free sex.
9:02 AM - 30 Jun 2014

Look for AIDS drugs, penicillin, anti-herpes creams, diagnostic testing, you name it, to be the next frontier in disallowing employees to access items that mitigate the consequences of sex through their healthcare plans.

When Alito writes words like "limited" and narrow" to define this ruling, he means, "Erick, bring me more cases and let's outlaw f*cking altogether."

Also, shouldn't Erickson's dear mother have given us a trigger warning regarding the consequences for the rest of us of his Dad rogering her nine months before he sullied the manger?

He's nought but a suppurating pustule, a social disease, on the inadequate love wand of conservatism.

[bobbyp]

Tony P. brings up a good point. Actuarially, a plan without BC will have higher costs, and the premiums will, ceteris paribus (don'tcha' just love that term?) have to rise accordingly.

This is a good deal for who?

Also, won't the crybabies at Hobby Lobby now have to offer higher wages to their wimmins employees? How much do you think the raise shall be?

[Marty]

9 dollars a month

[wj]

I confess that I find it interesting that Justice Alito thinks he has crafted a narrow ruling here. When he has, in dissent from other rulings, contended (correctly) that they would have extremely broad consequences, far beyond what the majority claimed to be deciding. (Cf his dissents in Lawrence or Windsor.)

"O wad some Pow'r the giftie gie us
To see oursels as ithers see us!"

[Doctor Science]

Marty, "9 dollars a month" is the cost of the generic version of *one* type of birth control.

Importantly, some of the most effective methods of BC aren't widely used in the US because they have high up-front costs.

IUDs, for instance, cost $500-1000 at once, but then last for 5 years or more. Implants cost $400-800 and last 3 years. Progestin shots cost $35-75 and last for 3 months.

If you think contraception is no big deal, you have no business talking about contraception.

[Marty]

Doc, all of those cost less than $20 a month, my insurance only pays for generic sumatriptan, up to 9 pills a month for my migraines. It works like crap. I run out regularly. Life has limitations. Some people can only afford generic birth control. Some women just can't afford an iud. Life has limitations.

Nothing irritates me more than being told somehow I am not worthy of having an opinion. It is really not that complex a thing I think I can grasp it. Two wives two daughters later it isn't a mystery.

[bobbyp]

...but a large number of the owners of these companies have/had all of their personal assets mortgaged against lines of credit etc.

1. The veracity of this claim is not backed up by any evidence.
2. The claim is irrelevant as these poor hocked up to their eyeball folks still have LIMITED LIABILITY. That is the whole point of llc/corporate organization.

This is as opposed to some poor schmuck who takes out a student loan and cannot, unlike these poor, poor, oh woes!, poor downtrodden small businessfolk who get write off their personal cars and vacations as a business expense, declare business bankruptcy.

Cry me a river.

[Countme-In]

Yes, but Marty, do fellow conservatives call your nine migraine pills "slut pills"?

After all, headaches are a form of birth control, you little minx.

[Marty]

In the midst of a serious tantrum on my part, matched only by bobbyp's, I actually laughed out loud. You little minx ...

[russell]

9 dollars a month

Not the point.

The point is that the 1st Amendment rights of owners of closely held for-profit corporations have now been recognized in those corporations.

That's new. It's a break from the up-to-now settled law.

And it's a huge can of worms.

What makes something that a corporation does an "exercise of religion"?

When does a regulation present an "undue burden"?

When does the state's interest in regulating trump the corporation's newly discovered right of free religious exercise?

Who decides all of this? Congress? The courts? The executive?

How do any of those entities make decisions about what is, and is not free exercise of religion in the context of commercial transactions?

How do they do so without favoring one point of view over another?

How do they favor one point of view over another without establishing religion?

All new territory.

And all of this was done so that the company that the Greens own, and which otherwise operates per the requirements of plain old secular law, won't have to purchase insurance that includes, among every other standard element of preventive care, coverage for birth control methods that some employee of Hobby Lobby, somewhere, might decide to use.

From the Greens, to Hobby Lobby, to the insurance carrier, to the health care provider and/or pharmacy, to a hypothetical Hobby Lobby employee. Assuming somebody actually uses the insurance to pay for any of the undesirable products.

Several degrees of separation there, between the Greens' personal involvement, and the objectionable act.

That's now the standard for "exercise of religion", and for "undue burdens".

Get ready for the weirdness, because it's on it's way.

[Marty]

"Not the point"

Certainly not, just the answer to a specific question.

[Marty]

operates per the requirements of plain old secular law

We should not forget that this wasn't a law. It was the hhs policy that was set in implementing the ACA. They decided that a benefit that was included in almost all business provided coverage had to be required. It was their can of worms to open or not. They chose to. Then when the exceptions objected they built a whole anti woman campaign using it ad a political hammer. It is unlikely many employers drops such an inexpensive and potentially cost saving benefit from their insurance plan. In large part it is not clear how big a deal in practice this really is.

[wj]

One part of the can of worms russell refers to: what laws and regulations, other than providing insurance which covers contraception, can otherwise entirely secular companies now opt out of on religious grounds? (Alito says his opinion only applies to this one item. But that just means that there will be a flood of cases, until the Court either lays out a general principle or establishes a few thousand individual precedents.)

And that's before we get to questions about whether only beliefs of organized religious donominations count. How big, how many members, does a religion have to have before they can get an exception? And can someone have non-religious ethical objections -- and if not, how is that not "establishment of religion"?

Definitely a full employment for lawyers decision.

[joel hanes]

LIMITED LIABILITY. That is the whole point of llc/corporate organization

Especially under the laws of Delaware, in which state well over half of companies choose to incorporate. I've spent most of my adult life working for Delaware corporations.

If things continue on this path, I imagine that Delaware will be the first state to give corporations a vote in Senatorial elections.

[bobbyp]

They decided that a benefit that was included in almost all business provided coverage had to be required.

And rightly so based on reams of evidence that such coverage was good for the health of half or more of our population, and what's good for health is good for "bending the cost curve downward", which is, you know, one of the major reasons for adopting the ACA.

Did you think the Dept. of Health & Human Services just made the rule up on a whim?

The "big deal" is this. Possibly thousands of women will be harmed just so some assholes like the Greene's and others of their warped political persuasion can make a political point.

They deserve nothing less than to rot in hell.

[bobbyp]

For those of you who think small businessfolk walk on water:

http://www.thefiscaltimes.com/Articles/2012/01/18/Small-Business-Tax-Cheats-A-$122-Billion-Problem

We give them nearly everything they ask for, and still they rob the public purse blind.

[Nigel]

I think, not to go too tangential, that the concept that all corporations shield the owners from any financial liability should be debunked. It does limit the liability in many areas, but a large number of the owners of these companies have/had all of their personal assets mortgaged against lines of credit etc. To ensure the survival of the company. As they get successful the company has the money, good for them.

Some seriously confused thinking here.

No wonder you appear not to have problems with the decision.

[cleek]

"corporations are people"

don't forget, "conservatives" actually nominated a person who believes that corporations are people. so it's no wonder they love this H.L. decision.

[Tony P.]

After sleeping on it, I still can't decide: does the US suffer more from corporatism or religiosity?

--TP

[Hartmut]

Tony P,
SCOTUS est corporatio mea novi praecedenti quae pro paucis funditur in remissionem pecuniarum.

[Hartmut]

alternatively 'conditur' instead of 'funditur'.

[Countme-In]

corporatism or religiosity?

It's a pincher movement.

Then, there is the violent, murderous, domestic McVeighian, terrorist wing of the Republican Party, now openly embraced and allowed to operate freely across state lines by that Party as the means to kill its enemies ... us ... and institute the pure corporate religiosity sought by the John Birch Society, which is the lifeblood of the so-called "modern" Republican Party.

It's going to take more than nine migraine pills to soothe the pain that's coming when the troubles start.

The Latin for what is coming is shititur hittus fanarium.

[Countme-In]

The link for the link:

http://talkingpointsmemo.com/edblog/you-simply-must-read-this

[Hartmut]

Count-me, actually it is merda flabellum ictura (or ic[i]ens, if it is present not future tense).

[russell]

Certainly not, just the answer to a specific question.

Fair enough.

We should not forget that this wasn't a law. It was the hhs policy that was set in implementing the ACA. ... It is unlikely many employers drops such an inexpensive and potentially cost saving benefit from their insurance plan. In large part it is not clear how big a deal in practice this really is.

Also good and reasonable points.

IMO the practical consequences of Hobby Lobby, specifically, not being required to pay for a handful of birth control products or procedures, which are not "onerously expensive" for most definitions of those words, is minimal.

The potential harmfulness of the decision is the precedent of recognizing the 1st A right of freedom of religion in for-profit corps.

And, I would add, in the vagueness of now-binding terms like "closely held", "undue burden", "religious activity", and "compelling government interest".

Some of the largest companies in the US are "closely held", if that term means "does not issue publicly traded stock".

Something like half of the people in the country work for such companies. I do.

Anyone who owns a company that doesn't issue public shares now has a basis for claiming an exemption from any federal law or regulation if they can find a way to frame it as a burden on their religious beliefs.

As wj points out, it's not clear if the same protections apply to mere human conscience, not necessarily motivated by religious faith. Which is a sticky point of its own.

The SCOTUS apparently called out discrimination based on race as being off limits, however my understanding is that LGBT folks and women were not mentioned.

Here are the court's words (Scalia's words, if I'm not mistaken) from the Oregon Employment Division vs Smith decision, in response to which Congress passed the RFRA:

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

And:

The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races

Having closed the door to all of the above for plain old human beings in Smith, the court has now opened the door for the same for for-profit corps.

Much entertainment to follow.

[cleek]

the difference is that was then, this is now.

[byomtov]

a large number of the owners of these companies have/had all of their personal assets mortgaged against lines of credit etc.

But that's not a function of the corporate form at all. Often, when a small privately held company seeks a significant loan the lender will require the owners to provide a personal guarantee. Of course there is the option of not borrowing the money, or borrowing less, etc.

In addition, minor shareholders generally do not have to sign such guarantees.

[wj]

Some of the largest companies in the US are "closely held", if that term means "does not issue publicly traded stock".

I believe that the IRS' definition (if that is what the Court was using) is that at least half of the company is owned by 5 or fewer individuals. Or, specifically, was owned by 5 or fewer individuals for at least half of the last tax year.

Side question: If corporations are people, does that mean their subsidiaries can qualify as "closely held"? Because if so, one could then have a corporation which was not closely held, but which did all its businesses thru subsidiaries in order to get around the closely held restriction....

[russell]

The (or an) other difference is that Smith was about crazy peyote-eating Injuns, whereas the Greens are fine upstanding Christian folk.

Freedom for some, and where extended, extended to their property as well.

[Countme-In]

":I believe that the IRS definition ........"

Cue the House Republicans's next clown show investigations into the IRS' attempt to find out if the laws are being followed.

[Marty]

"Having closed the door to all of the above for plain old human beings in Smith, the court has now opened the door for the same for for-profit corps."

I don't believe this is accurate. The court used the words narrow and specific on purpose. Like most good dissent, the minority declared the sky is falling. To echo russell from a few days ago, hhs overstepped in a stupid way and the SCOTUS slapped them down.

An interesting summary of a Christian view

[russell]

The court used the words narrow and specific on purpose.

Are there any examples in our nation's history of "narrow" rulings being subsequently "widened"?

Time will tell where this decision leads, and I suspect it won't take very long.

An interesting summary of a Christian view

A couple of comments here.

First, there is no single "Christian view" of this issue. You will find spokespeople for every conceivable perspective on this issue in the Christian community, and also in nearly every other flavor of religious community, and also in non-religious communities.

Second, what the author of the piece you link to fails to mention, even once, is that the person in whom freedom of religion has been recognized in this case is a *for profit corporation*.

Not the Greens. Their personal religious liberty is not, and was not, ever, in question.

[Baskaborr]

Worth noting that per a figure given on NPR's Morning Edition this morning, one half of all employees in the United States work for businesses that are owned by either a single person or a family. So potentially this directly effects half the workers in the U.S.

[Marty]

I would note russell that I said A Christian view, on purpose, not THE Christian view.

[russell]

Noted

[Marty]

Not the Greens. Their personal religious liberty is not, and was not, ever, in question.

Well, I guess that's the rub. They, and many others, think it was. Just because they happen to own the company as a corporation doesn't mean they don't own the company.

[sapient]

Just because they happen to own the company as a corporation doesn't mean they don't own the company.

Why is that same standard not applied to those who seek legal immunity behind the corporate veil?

[Julian]

This is my take, please correct me where I err. Also, I'm going to ignore legal doctrine (which won't be hard, as I don't know it here) and just appeal to logic:

The Greens want to claim the health insurance they offer employees as a tax deduction. HHS said that employer-provided health insurance cannot be claimed as a deduction unless it covers contraception. Greens argued that this violates a bunch of things: First Amendment, RFRA, etc. SCOTUS said Greens win and that HHS's policy violates RFRA because HHS's policy overburdens the Green's religious beliefs.

What is the principled distinction between what the Greens are doing and every other religious objection you can possibly raise to a government policy?

For example, let's say there's a tax deduction available to government contractors, but any contractor can be disqualified from claiming that deduction if they are found liable under Title VII for race discrimination. A closely-held corporate government contractor claims their religious beliefs are burdened by being barred from racial discrimination. Is that too much of a burden?

[russell]

Why is that same standard not applied to those who seek legal immunity behind the corporate veil?

To follow up on this from more or less the other side of the coin:

If the Greens wanted to enjoy the protections of the RFRA, they could have organized Hobby Lobby as a general partnership.

They would have had to forgo some of the obvious benefits of the corporate form. But, they would have been operating as *themselves*, personally, and so would have enjoyed the protections of their *personal* civil liberties in the operation of their business.

[sapient]

Taking a page from the Count's book, here's a link to a link to the other war on women case decided yesterday.

[Marty]

If the Greens wanted to enjoy the protections of the RFRA, they could have organized Hobby Lobby as a general partnership..

They had no reason to consider that until the HHS decided to arbitrarily require them, over much of Congress's objection to provide insurance for ALL forms of birth control. Long after they had made their organizational choice.

[cleek]

this is the same Hobby Lobby that has no problems investing its money (and the money of its delicate employees) in companies that make all of the products they were suddenly so concerned about, and the same Hobby Lobby that provided many of these same products in their previous health care plan, right? we're talking about the same company?

this is the company that, suddenly, decided it had to fight against providing what it had already been providing and opposing the products of the companies that it still invests its employees' retirement funds in. same one?

[Marty]

many of these same products in their previous health care plan

And, as far as any public statement I have seen goes, plan to continue to provide what they always have.

[cleek]

And, as far as any public statement I have seen goes, plan to continue to provide what they always have.

nope.

Plan-B and Ella, which were previously covered, are among the things the esteemed medical wizards at HL have deemed "abortifacients".

they're frauds.

[Marty]

"they're frauds."

Seem pretty genuine.

[sapient]

They're genuinely frauds, Marty.

[Nombrilisme Vide]

We're talking about beliefs that are sincerely held and religiously significant enough to very publicly go to the Supreme Court to fight for, but not to privately check in their existing health plans for compliance until a third party raises the subject. There seems to be more than a little inconsistency here.

[Nombrilisme Vide]

The term is "real phoneys", sapient. Sheesh.

[Ugh]

Alito: "The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs."

Will be interesting if this leads to courts adjudicating whether someone's religious beliefs are "sincere" and how you apply a sincerity test to a legal construct. Perhaps if the owners are not unanimous in their religious beliefs on a particular issue the corporation's religious belief is no longer "sincere" and can't be protected under the RFRA?

One would think that would be a reason why the RFRA doesn't apply to corporations under the "unless the context indicates otherwise" portion of 1 USC 1. Unfortunately its conceded applicability to religious non-profits organized as a corporation makes it much harder to convincingly argue that it is not applicable to for-profit corporations.

[Marty]

or, due to the very public nature, someone pointed out something they didn't know?

[Donald Johnson]

"If things continue on this path, I imagine that Delaware will be the first state to give corporations a vote in Senatorial elections."

Or elect a corporation to the Senate. Cut out the middleman.