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More on the Contraception Non-Mandate

[ 267 ] March 24, 2014 |

Before tomorrow’s oral arguments,let me note again that people interested in the latest ad hoc legal challenge to the ACA should definitely look at Marty Lederman’s series of posts, helpfully collected here. We’ve already discussed one of his crucial points, namely that there is no contraception “mandate.” Hobby Lobby is not legally required to compensate its employees with health insurance at all. The regulations imposed by the ACA are on insurance plans, not on the corporations per se. What is erroneously described as a “mandate” simply means that if corporations choose to take advantage of the tax benefits for compensating employees in health insurance rather than wages, the insurance has to meet minimum coverage standards. As is often the case with specious religious freedom arguments, the corporation wants it both ways, to get the tax benefits without providing the full benefits to employees. And if the corporation wanted to argue they have no practical choice but to offer coverage, then according to the logic of their own arguments, the religion of the managers is not being burdened; they’re not paying for the contraception or making the decision to include it in insurance plans.

From his contribution to the SCOTUSblog forum, the lack of precedent on behalf of the challenge is also worth noting:

The plaintiffs in these cases are seeking a type of religious exemption that has virtually no precedent in the history of free exercise and RFRA adjudication.

In their scores of briefs, the plaintiffs and their many amici fail to cite a single case, apart from the current contraception coverage litigation, in which a court has held that either the Free Exercise Clause or RFRA entitled a for-profit commercial enterprise to an exemption from a generally applicable law by virtue of a burden on the religious exercise of the employer or its owners, managers, or directors. And whenever such a case has reached the Supreme Court – including Braunfeld v. Brown (1961), Newman v. Piggie Park Enterprises, Inc. (1968), and United States v. Lee (1982) – the Court has overwhelmingly or unanimously rejected it. (Moreover, even apart from RFRA and the Free Exercise Clause, Congress has rarely, if ever, extended specifically religious exemptions to for-profit enterprises.)

This unbroken history is hardly surprising, given that in virtually every such case – and even in cases where nonprofit commercial enterprises seek religious exemptions, such as Tony & Susan Alamo Foundation v. Secretary of Labor (1985), another unanimous decision – a religious exemption would require customers, employees, or competitors to bear a heavy cost in the service of another’s religion, something the Court has understandably been loath to sanction.

Picking up on this last point, Walter Dellinger notes that while the burden “imposed” by the non-mandate on employers is trivial-to-non-existent, the burden accepting this unprecedented legal argument would have on employees is not:

The Supreme Court has held that any accommodation of religion “must be measured so that it does not override other significant interests,” especially those of third parties. The exemption being sought in these cases would do just that. Giving legal force to corporations’ objections to covering the use of contraceptives by their employees would deny to thousands of women affordable access to the most effective methods of birth control — a benefit that those women, or the female dependents of employees, earn as part of their employment compensation package.

In these cases, the shifting of a burden to third parties is not merely a matter of economics. More than half of all American women experience an unintended pregnancy, according to a 2008 study, and 40 percent of those pregnancies end in abortion. Improved access to the most reliable methods of contraception would significantly reduce both unintended pregnancy and the need for abortion. For all women, denying practical access to the method of contraception that is right for their health and life circumstances, as well as the well-being of their families, can represent a serious incursion into their individual moral autonomy.

Selectively denying insurance coverage for contraceptive methods an employer considers sinful effectively makes the employer a party to a woman’s medical consultations. An understanding of the importance of access to the full range of contraception options should lead the court to reject claims of religious entitlement that so greatly burden the interests of others.

As we’re also seeing with gay and lesbian rights, accepting the argument would wreak havoc with civil rights law. Of course, to many proponents of the litigation,

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this is a feature, not a bug.

Comments (267)

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  1. Gwen says:

    Let’s recap what we know with 100 percent certainty:

    * If Hobby Lobby wins, the majority opinion will be insufferably sanctimonious yet full of lots of hand-wavy nonsense (“equal dignitude of the states because freedom!”).

    * If Hobby Lobby wins, there is a high probability that Kennedy will write the opinion (again, insufferable).

    * If Hobby Lobby loses, Scalia will probably write an epic troll minority opinion (pass the popcorn).

    * If Hobby Lobby loses, Christians will be officially the most persecuted minority EVAH.

    • Gregor Sansa says:

      * Hobby lobby has no valid religious objection to buying normal insurance for their employees..

      Normally, I wouldn’t say this. I mean, “valid religious” is nearly an oxymoron in my book, and if you’re already twisting words enough so that it’s not one, you’re twisting them by enough to encompass a very broad range of things. People have valid religious reasons for plenty of silly things (underwear, hats, etc.) and even for things which are varying degrees evil and oppressive, at levels ranging from not-really-my-business (burdensome gender-specific dress codes) to grossly intolerable (refusing necessary blood transfusions for your children, death penalty for the wrong kinds of sex).

      So if I’m willing to swallow all that as “valid”, why do I balk at the contraception stuff? Because it’s fundamentally based on an error of fact. These people believe that hormonal contraception causes “abortions” (failure to implant), when the opposite is true (it prevents them). And they believe it not because their bible or prophets tell them so, but simply because they are so caught in epistemic closure and anti-science culture that they can’t actually assess the evidence.

      I know that there are other reasons to oppose contraception (“be fruity and times yourselves”, Onan), but if any of that were the motive, there would be no possible justification for making this kind of a production out of it. Only if they’re worried about being accessory to murder would this make sense from any remotely reasonable perspective.

      (Of course, if you’re willing to give up the assumption of “remotely reasonable”, there’s also just misogyny and general hatefulness. Which I firmly believe is the real motivation here. But I can’t prove that.)

      • David M. Nieporent says:

        These people believe that hormonal contraception causes “abortions” (failure to implant), when the opposite is true (it prevents them).

        These people believe that a few specific types of contraception (such as Plan B) can cause failure to implant, and the FDA agrees with them.

        • DrDick says:

          As usual, you are on the losing side of history and logic. Fuck off and die (which is what you want their employees to do).

        • Nutella says:

          These people say the pill is an abortifacient, too. They’re wrong.

          And you’re wrong.

        • Scott Lemieux says:

          These people believe that a few specific types of contraception (such as Plan B) can cause failure to implant, and the FDA agrees with them

          But a failure to implant is not an abortion. An abortion has to terminate an actually existing pregnancy, and there’s no evidence that Plan B does this. (Plan B doesn’t inhibit implantation either.)

          • junker says:

            It’s also more or less beside the point, right? The argument here is independent of whether or not this particular type of contraceptive is an abortiofacient or not, in that the argument is that a bare assertion of religious freedom is enough to get an employer out of a law they disagree with. The abortion aspect to it is just a way to distract from what’s really happening here.

            • Scott Lemieux says:

              Right. It’s just interesting that in addition to the countless other problems with Hobby Lobby’s argument, they don’t even have a theological objection to contraception; the asserted religious conflict is based on a (scientifically erroneous) belief that some forms of contraception cause abortions. I think that courts should be extremely differential to how religious beliefs are characterized, but this comes close to the line.

              It’s all moot, since there’s no substantial burden, but it’s interesting.

              • DrDick says:

                As I have repeatedly pointed out, there is no burden at all, since the Greens are not personally providing anything to the employees. The corporation is and they and the corporation are legally separate. When they opted to avoid personal responsibility for company debts and a preferential tax rate, they gave up any personal religious privilege regarding the actions of the company.

                • Brien Jackson says:

                  ^This.

                • Bijan Parsia says:

                  It’s worth reading the Lederman posts (or my quotes from one of them, blow). In particular, it seems like there is a reasonable way in which the Greens, as directors of the company, might be burdened (though they probably are not, in fact).

                  So, I don’t think it’s as immediate as this.

                • cpinva says:

                  “As I have repeatedly pointed out, there is no burden at all, since the Greens are not personally providing anything to the employees. The corporation is and they and the corporation are legally separate.”

                  agreed, up to a point. what the corporation is providing, per IRC 125, is a non-taxable benefit (full or part payment of health insurance premiums), in lieu of an increase in taxable wages. that payment is not only deductible, as an operating expense, to the corporation, it isn’t subject to any employment taxes either. so there’s a multiple whammy going on, tax wise.

                  if the corporation chooses, with the (presumed) consent of its employees, to partially compensate them in this way, then they are also subject to whatever the law requires, in the way of a minimally acceptable level of coverage.

                  for-profit entities (regardless of type) have never been held to have legally recognizable religious beliefs, before or after RFRA. which brings up a question I haven’t seen asked before. not that it hasn’t been asked, I just haven’t seen it, if it has.:

                  Has the RFRA itself ever been challenged, as to its constitutionality, under 1A’s “establishment clause”? I ask, because it seems to me that, by definition, RFRA can never hurdle that bar, because it does result in the government’s recognition and support of religion. by giving religious parties a free ride/pass, solely because of their religious beliefs, it opens that Pandora’s box that even scalia warned about, in an earlier, pre-RFRA case.

              • Δ Bavarian Illuminati (Follow us on Facebook!) Δ says:

                Right, that’s exactly what I was trying to say.

                And it bears repeating: Nieporent is dead wrong here. There is no evidence or even solid argument that Plan B causes failure to implant, and in fact it’s clear that it prevents that from happening. And the FDA’s political cowardice and historical weasel words do not constitute either “agreement” or any kind of scientific evidence. So, Mr. Nieporent: insofar as you regard failed implantation as a problem, you should be standing on street corners handing out plan B. Your argument is pathetically counterproductive by any religious, scientific, or moral code.

                • Gregor Sansa says:

                  nym fail, sorry.

                • DrDick says:

                  Your argument is pathetically counterproductive by any religious, scientific, or moral code.

                  That, however, is true of everything he has ever posted here.

                • David M. Nieporent says:

                  I don’t care about Plan B. I am explaining the Greens’ objections, not adopting them.

                  And somehow I don’t think the government is going to die on the hill of “You should ignore the FDA’s official statements because they represent political cowardice” in this litigation.

                • Scott Lemieux says:

                  To say that the FDA “agrees” with the Greens is, at best, misleading. The label merely leaves open the theoretical possibility that Plan B “may” prevent implantation; it doesn’t say that it “can.” Meanwhile, “The F.D.A. declined to discuss decisions about the effect on implantation or to say whether it would consider revising labels. But Erica Jefferson, an F.D.A. spokeswoman, acknowledged: “The emerging data on Plan B suggest that it does not inhibit implantation. Less is known about Ella. However, some data suggest it also does not inhibit implantation.” “

                • Gregor Sansa says:

                  Some time ago, the FDA said “hormonal contraception may work through some combination of A, B, and/or C”. Since then we’ve gotten clear evidence for A and a clear lack of evidence for C. And they never claimed it was C; they just weaselishly failed to rule it out.

                  I’m not claiming that this is the hill the SCOTUS will defend (and, pretty much by definition, not die on). But it is a perfectly defensible one, old FDA weasel-words notwithstanding.

          • Donna Gratehouse says:

            I’m calling b.s. on the “they’re only talking about ‘abortifacients’” argument anyway. The amicus curiae briefs filed in support of HL and Conestoga are rife with pure anti-contraception rhetoric.

        • Brien Jackson says:

          Failure to implant is not an abortion, it’s lack of a pregnancy.

          • junker says:

            This. By this logic, any woman who experiences a miscarriage is committing an abortion.

            • Brien Jackson says:

              This is why the crazies have put so much emphasis on fertilization.

            • Theo says:

              By your logic, a drug that causes a miscarriage does not cause an abortion?

              • Brien Jackson says:

                I have no idea what this is supposed to mean. The point is that the idea that “life begins at fertilization” is transparently stupid given the very high number of fertilized eggs that do not implant. Pregnancy begins at implantation, so a drug/device that prevents implantation/pregnancy from having quite clearly does not cause an abortion because there is no pregnancy to abort.

                Not that this matters anyway, since the religious exemption argument is complete bullshit, but it’s at least worthwhile to note that there’s no scientific basis for the bullshit either.

                • ThrottleJockey says:

                  Their view that life begins at conception is nothing more than a romantic notion rooted in 1980s presidential politics. And it is impervious to any amount of scientific reasoning. Hence you might argue that contraception would save billions of zygote’s souls, but they wouldn’t care. Its a matter of dogma for them, not science.

              • DrDick says:

                Having problems with reading comprehension? A miscarriage is technically known as a “spontaneous abortion.” Eggs that fail to implant are not miscarried or aborted.

                • Theo says:

                  Ok. Then why was junker talking about women who experience a miscarriage “committing” an abortion?

                  Granted, the comment was a bit hard to parse, but anyway I read it, it suggests that miscarriages are not “abortions.” What’s the basis for that reasoning?

                  Also, if I believe that terminating the reproductive cycle at any point after fertilization is morally wrong according to my religion, and I call such intentional termination an “abortion,” should I change my mind concerning my religious beliefs because the scientific community has agreed that an “abortion” may only occur after implantation?

                • Gregor Sansa says:

                  They are wrong on so many levels, it’s hard to know where to start.

                  1. Fertilized eggs that fail to implant are not abortions.
                  2. There is no evidence that plan B reduces the probability that a fertilized egg will implant.
                  3. There is clear proof that it does prevent ovulation, which then prevents fertilization (an event which usually happens hours to days after intercourse), and thus obviously prevents some “tragic” non-implantations.
                  4. The fact that nobody cares about the above is proof that nobody in this debate is actually trying to save the unborn cell-clumps.

                  They are lying about why they care. The “pro-life” movement is a movement of trolls. I’m sure that there are some honest people in the movement who merely aren’t thoroughminded enough to have thought things through, but when they persistently refuse to engage with the facts, the only word is “troll”.

                • DrDick says:

                  Then why was junker talking about women who experience a miscarriage “committing” an abortion?

                  Can you read at all? I just explained that. A miscarriage is the same as an abortion. If the egg does not implant it is neither of those.

                • Pat says:

                  For a woman to know, surely and absolutely, that sex will not make her pregnant, enables her to feel that she is in control of her fate.

                  Then there is no need to make silent promises to an imaginary friend late in the night.

                  Access to completely effective birth control eliminates one of the main levers evangelical churches wield over young women in their sway. It may well be one of the reasons Europe has become so secular. I believe that this is the reason Hobby Lobby fears IUDs and the pill.

            • David M. Nieporent says:

              For some reason, people on this blog are fond of using the phrase “by this logic,” despite neither using logic nor anything resemble the previous statements. Whether failure to implant is termed “abortion” or “lack of pregnancy” has no relation whatsoever to whether miscarriages are abortions.

              And of course “experiencing a miscarriage” is not “committing an abortion,” as the latter describes a volitional act while the former describes something happening to a person.

              • DrDick says:

                The technical term for miscarriage is “spontaneous abortion,” so yes, your sophistry aside, a miscarriage is an abortion.

                • David M. Nieporent says:

                  The previous poster didn’t say abortion, and therefore, I, quoting him, did not say abortion. He/I said committing an abortion.

                  And having a miscarriage is not “committing an abortion.”

                • DrDick says:

                  And having a miscarriage is not “committing an abortion.”

                  Neither is preventing implantation, but that has not stopped you from arguing it is.

                • David M. Nieporent says:

                  I have not argued that preventing implantation is committing abortion. I have argued that the Greens are religiously opposed to the use of forms of contraception that prevent implantation, whatever you label that process.

                • DrDick says:

                  I have argued that the Greens are religiously opposed to the use of forms of contraception that prevent implantation

                  Because they WRONGLY claim it is abortion. Those damned goal posts are headed for Alpha Centauri now.

                • Hogan says:

                  Because they WRONGLY claim it is abortion

                  Wrong or right doesn’t matter. They said the magic words (“religious belief”). The law can’t touch them. They’re just like Maureen O’Hara in The Hunchback of Notre Dame, and Scalia will be just like Charles Laughton, only not as agile or attractive.

            • cpinva says:

              “By this logic, any woman who experiences a miscarriage is committing an abortion.”

              by this “logic”, every women who fails to have every egg she has, prior to menopause, fertilized, is committing an “abortion”. of course, one could conversely argue that every man who fails to try and use all his sperm to fertilize every egg available, is also committing an “abortion”.

              I note this doesn’t appear anywhere on the respective plaintiff’s briefs. apparently, even those attorneys weren’t willing to go that far down the rabbit hole. or they just didn’t think of it.

        • ChrisTS says:

          Yes, David, the FDA agrees that these medications prevent implantation. But, implantation is not abortion/miscarriage.

          I know you think this is a merely ‘semantic’ issue, but people who actually understand reproductive biology know there is a real distinction, here.

          • ChrisTS says:

            So, now I have learned from others on this thread that it might not even prevent implantation; it prevents ovulation, which prevents fertilization.

            So this ’causes an abortion’ crap is actually double-down crap twice times over.

      • Bruce Baugh says:

        Though as Fred Clark reports on at Slacktivist, opposition to all contraception is ramping up on the religious right. He fears that in 10 years it’ll be as apparently obvious that all right-wing Christians oppose contraception and always have as it is apparently obvious now that they’ve all always opposed abortion rights. I wish I thought he were wrong about that.

        • ThrottleJockey says:

          Yeah, its a troubling trend. I think its partially a product of the political alliance Evangelicals have struck with Conservative Catholics, and partially a purely reactionary reflex to the election of Obama and the momentum of the gay rights movement. They’re becoming retrograde. As I said on a separate thread, they’re no longer standing athwart history yelling, ‘Stop!’ they’re standing athwart history yelling, ‘Go Back!’.

        • brendan says:

          Yes, the only evangelicals i know well–my sister and her church community–are almost as prolific as the ultra-orthodox jews i know. They are like riilllly fecund. I am uncertain whether they preach against contraception, but they sure practece none. The Full Quiver and all that

      • Theo says:

        “Because it’s fundamentally based on an error of fact.”

        Is it based on an error of fact if you have a religious belief that life begins at conception and that anything affecting subsequent processes is an abortion?

        • ThrottleJockey says:

          Setting aside the fact that there’s no Biblical reason to think life begins at conception–the Bible is famously silent on the subject–if you choose to date life from conception, you will be consigning the souls of millions of zygotes to death. Hence, to save as many of these zygotes from untimely death as possible you should favor mandating women use birth control.

          • Theo says:

            As if your logic has anything to do with my beliefs. The point being, of course, is that if I get to set my own facts, I get to control the outcomes of any logical reasoning as well.

            The death of zygotes don’t bother me, so long as there is no moral culpability. My religion defines the scope of moral culpability, not your logic.

            If you want to talk about errors of fact, you will need to prove to me that my God is wrong. Good luck.

            • Malaclypse says:

              As if your logic has anything to do with my beliefs.

              A perfect summary of conservative thought. Well done.

              • Theo says:

                Does my logic have anything to do with your beliefs?

              • Theo says:

                Would it matter if I did? No logical argument is valid without consistent truth values of the components. If you don’t agree on those values, then you don’t get anywhere using logic.

                Or, if you prefer:

                All valid arguments must have consistent terms. The arguments about abortion here, and in general, do not have consistent terms. Therefore, the arguments about abortion here, and in general, are not logically valid.

                Does that work for you?

                • sharculese says:

                  Go back to your bong, plz.

                • DrDick says:

                  Dude, we warned you about the brown acid!

                • Theo says:

                  I’m new here. Are accusations of drug abuse the response you give when you finally understand an different viewpoint?

                • DrDick says:

                  Accusations of drug abuse the response we give when your responses get increasingly shrill and incoherent.

                • efgoldman says:

                  No logical argument is valid without consistent truth values of the components.

                  Argument based on myth (you probably call it “faith), rather than provable, repeatable, verifiable scientific fact, is not a logical arumnt.

                • ChrisTS says:

                  Uh, no.

                  Logically sound arguments must have true premises and valid reasoning from the premises to the conclusion.

                  If you start out with false premises, the validity of the reasoning is beside the point.

                  All humans are immortal.
                  Socrates is human.
                  Therefore, Socrates is immortal.

                  Perfectly valid and still a crap argument.

                • Bijan Parsia says:

                  I was trying to decipher this and failing.

                  Would it matter if I did? No logical argument is valid without consistent truth values of the components.

                  Do you mean uniform assignment of T (or F) to atomic propositions? But…counterfactuals? Or….indirect proof?

                  If you don’t agree on those values, then you don’t get anywhere using logic.

                  Or do you mean consistent use of term? (I.e., avoiding equivocation?)

                  All valid arguments must have consistent terms. The arguments about abortion here, and in general, do not have consistent terms. Therefore, the arguments about abortion here, and in general, are not logically valid.

                  Do you mean by “consistent”, “univocal use of a term”?

                  Meh. Equivocation can be fallacious for sure, but as long as you use the terms correctly (i.e., they can be resolved appropriately), then I don’t see a problem.

                  Does that work for you?

                  Well, if what you mean was “don’t equivocate or you won’t get far” then not really.

            • ThrottleJockey says:

              It actually depends on how obedient you are to your own religion. You can maintain a farce only insofar as you’re willing to change the facts–and the rules–of your religion.

              To whit, you can say your religion is only concerned with moral culpability–which is why you can be unconcerned with contraception. But once men and women consent to sex–now burdened by the knowledge that sex will kill millions of zyogtes–they must either: 1) Abstain from sex; or 2) Use contraception. There is no other choice but these 2 if you wish for your religion to remain internally consistent. The only way out of this intellectual quagmire is to throw up your hands and say, “I don’t care!” But then you’re violating your religion. Good luck with that.

              • Theo says:

                “if you wish for your religion to remain internally consistent.”

                Surely you recognize the weakness here. My religion does demand internal consistency; it never has, it never will. And even if it did, it is not my responsibility to harmonize what others find inconsistent. If I cannot understand the complexity of that which is my God, how is an outsider to understand it?

                Or, shorter: “God works in mysterious ways.”

            • David M. Nieporent says:

              The death of zygotes don’t bother me, so long as there is no moral culpability. My religion defines the scope of moral culpability, not your logic.

              This is supposed to be sarcasm, but like much sarcasm here, it fails because it is entirely accurate. (And what moral or religious system does not treat an intentionally-caused death as more morally serious than a naturally-occurring one?)

              • Theo says:

                That wasn’t sarcastic.

              • Bijan Parsia says:

                And what moral or religious system does not treat an intentionally-caused death as more morally serious than a naturally-occurring one?

                Well, the problem of natural evil is a bigger problem for the existence of God than intention evil, which generally skates by on the free will defense.

                So….lots of theologies?

                (Obviously, it’s not more morally serious for the human murderer, but it is more morally serious for God.)

          • DrDick says:

            According to what is in the Bible, personhood occurs at birth or at quickening, which is still upheld by the orthodox rabbinate.

          • cpinva says:

            if I recall correctly, the bible asserts that human life begins when you draw your first breath. since this would clearly be outside the womb (and god should know!), according to biblical god, you’re not considered “alive” in his/her/its eyes, until after you’re born.

            • DrDick says:

              It also explicitly states that causing a miscarriage is not murder, thus the fetus is not a person.

              • mds says:

                Hadn’t you heard? That clobber text has been used so often on them that there’s a new Bible translation which corrects the error by clarifying that it’s not a miscarriage, but an induced premature birth in which the fetus survives. What an amazing scholarly coincidence. (In related news, there’s a new dictionary translation which adds the above as a standalone entry under “sophistry.”)

                • DrDick says:

                  Next they will discover that Jesus really said that the rich will enter heaven on a red carpet.

        • sharculese says:

          Yes. You are factually incorrect about what an abortion is.

          Believing otherwise won’t change that, any more than it would change the shape of the earth or the taste of grape soda.

          You don’t get to change what words mean just because you don’t like how everyone else uses them. That’s not how it works.

          • Theo says:

            How does it work?

            Do you think there are a negligible number of people who accept that “abortions” can occur between fertilization and implantation? What is the critical number?

            And are majority definitions important to specific arguments if there is agreement or lack thereof between individuals participating in the argument?

            For instance, there are many legal terms that differ from their lay usage. Why can’t scientific terms differ from their lay usage? What determines lay usage from specialized usage?

            Check out this Catholic Encyclopedia link:

            http://www.newadvent.org/cathen/01046b.htm

            You think it uses scientific definitions? Why would they?

            • sharculese says:

              It works by not allowing you to derail reality with made-up definitions just because a couple of people share the same delusion.

              Fucking duh.

              • Theo says:

                A couple of people, eh? Yeesh.

                Ok. I’ll make it easier for you to avoid your hangups. What do you call contraceptives that stop the human reproductive process between fertilization and implantation? Let’s agree to call them X. My religion believes using X, giving X, or facilitating others in the use of X, is morally wrong.

                Is my religion “factually incorrect” by opposing the ACA’s rule changes that require health insurers to offer X?

                • Stag Party Palin says:

                  Is my religion “factually incorrect” by opposing the ACA’s rule changes that require health insurers to offer X?

                  Your whole point seems to be that different axioms (science vs religion) make it impossible to even debate the issue. I agree. But, since it is ‘fact’ vs ‘belief’, then your religion cannot claim to be either factually correct or incorrect. Either is a non sequitur.

                  And if you believe it is morally necessary to restrain my access to birth control, well then, I’ll just have to get out my silken cord and impose my Thugee moral imperative right back atcha.

                • DrDick says:

                  impose my Thugee moral imperative

                  All praise to Mother Kali!

                • Theo says:

                  “Either is a non sequitur.”

                  That’s right. The people here are attempting to undermine the factual basis of a religious belief, quacking on about the definition of abortion, etc. That’s a fool’s errand.

                  Once that is explained to them, and they come around to understand it, they shut up. Or at least resort to comments about drug abuse.

                • Theo says:

                  I should add. Does the ACA prevent an employer from “restraining” access to BC? I mean, I could see an employer prohibiting employees from using BC, but merely refusing to offer it under one kind of compensation is hardly “restraint.”

                • efgoldman says:

                  That’s right. The people here are attempting to undermine the factual basis of a religious belief

                  Easy enough. There is no factual basis for religious belief. You choose to believe a particular myth. Fine. At least here in the US, you may believe whatever you choose, and you may express it however you choose…
                  UNTIL you try to impose the beliefs you draw from your myth on the rest of us, and transfer them to civil law. At that point, we are not only free, but it is our obligation, to resist with at least the fervor which you try to push your mythology on the rest of us.

                • cpinva says:

                  “Is my religion “factually incorrect” by opposing the ACA’s rule changes that require health insurers to offer X?”

                  you can, of course, believe anything you/your religion wants. forcing the rest of us to also abide by your religious beliefs, via legislative fiat, is expressly forbidden under 1A. also, your “firmly held personal beliefs” don’t change scientific facts, regardless of how long you close your eyes and pray.

        • ChrisTS says:

          Since these pills (some of them) prevent implantation, there is no conception.

        • Origami Isopod says:

          Hey, Theo, I was just thinking of you when I read this! I think she’s talking to you, buddy.

      • Abigail says:

        These people believe that hormonal contraception causes “abortions”

        Do they, though? I mean, the whole “the pill is an abortificant” meme cropped up the very nanosecond that it became clear that the ACA would require employers to pay for contraception. Two years ago, the only people who gave a damn about contraception were a dwindling cohort of hard-line Catholics. It’s hard to classify this as a religious belief so much as a political cudgel.

        • Lee Rudolph says:

          There’s nothing to keep “a religious belief” from cropping up in a nanosecond—that practically defines (one kind of) a conversion experience.

          Not that I doubt the truth of your cudgel alternative, even for a nanosecond.

          • Xenos says:

            Yes, but a religion, if it is not to be openly and widely ridiculed, ought not change its dogma as a matter of convenience and political opportunism.

            Protestant sects that oppose contraception and abortion are thereby worthy of ridicule. Catholicism ought to be ridiculed, too (IMHO), but not on that basis.

        • Cheap Wino says:

          Exactly. This whole thing is more shit thrown at the wall to see what sticks in the demonize Obama/ACA to get more neanderthals conservatives elected. This one is all gussied up in it’s Sunday best but it’s still just shit on the wall.

          It’s telling that David M. Neopreene is all over it proving that principled libertarians are, for the most part, actually just suckers.

      • Anonymous says:

        Gah! Failure to implant is not an abortion, it is failure to achieve pregnancy.
        Onan! Gah! Misinterpretation of the story of a ‘traditional marriage’ scenario – Onan was obligated to provide his widowed sister-in-law with offspring since she lost her husband before they could reproduce and the brother of your (dead) husband provides the next best sperm. Onan’s ‘sin’ wasn’t masburbatory emission, it was refusing to provide his brother’s widow with the means to procreate that he was obliged to provide by the traditional marriage rules of his time.
        Sheesh, don’t those people actually read the bible?

    • Manju says:

      * If Hobby Lobby loses, Scalia will probably write an epic troll minority opinion (pass the popcorn).

      Scalia is arguably the person most responsible for gutting the free-excessive clause…more specifically, the sherbert test.

      see peyote case. various religions freedom laws were designed to counteract scalia’s opinion here.

      To the extent that he’s pro-religion, he’s curtailed the establishment clause. long/short: the free-speech clause limits the governments ability to prevent religious speech on government property. see Good News Club v. Milford Central School for example.

      • Lee Rudolph says:

        If God were truly merciful, he would have arranged to bring one ray of light into this poor deluded sinner’s heart by somehow having Good News Club’s case joined with that of Piggie Park Enterprises, Inc.

      • Hogan says:

        the free-excessive clause

        Your Freudian slip is showing again.

      • SteveHinSLC says:

        Yeah, Scalia’s opinion in the peyote case was anti-free exercise, but that is just because the religion at issue was not, in his book, a real religion.

        If the facially neutral law in Smith was one that made communion illegal, I think he would have ruled the other way. Based, no doubt, on the Original Intent of the Framers.

      • cpinva says:

        “various religions freedom laws were designed to counteract scalia’s opinion here.”

        yes, they were, and I don’t believe any of them would withstand judicial scrutiny, under 1A.

    • Tom Servo says:

      I can’t wait until Kennedy retires. But then again, I hope that, when he does, we have a veto-proof Democratic majority in the Senate.

  2. Gwen says:

    After reading about three paragraphs of Lederman’s post, it just occurred to me that I can’t recall a SCOTUS case so inherently built on a foundation of bullshit since atleast Bush v. Gore. And I am very, very worried.

    • Aimai says:

      Ditto me because who ever thought they’d rule against the Medicaid expansion on the grounds they did.

      • Gwen says:

        I think we have to be realists and admit that about three or four members of the SCOTUS are simply arsonists, who are looking for excuses… no matter how patently absurd… to stick it to the welfare state.

        • howard says:

          when you have supreme court justices who have no belief in stare decisis, then calling them arsonists is generous: they are far worse than that.

          given the relative youth of the sick four, i am likely to spend the rest of my life (i’m over 60) worrying that the court is going to rip apart the new deal, roe v. wade, and all other attempts to act as though the founders were revolutionaries attempting to build a better world rather than randians before their time….

          • Murc says:

            Well, I’ll say that Supreme Court justices really shouldn’t pay all that much attention to stare decisis. That’s for lower courts. It’s… sort of the job of the Supremes to decide “this previous decision was total bullshit, we’re changing it.”

            A major part of their job, actually, since at this point there aren’t a whole lot of minty fresh brand new constitutional questions on which to break new, precedent-free ground.

            • howard says:

              i can appreciate that the supreme court makes new ground in the way that lower courts can’t.

              but to me, that means that stare decisis shouldn’t be enough, but to ignore it altogether is something else.

              after all, if you are convinced that the supremes got it wrong previously, then at a minimum, you should be sufficiently self-aware that maybe you are getting it wrong too….

            • Scott Lemieux says:

              It depends whether we’re talking about statutory or constitutional interpretation. With the latter, I agree that the Supreme Court needn’t be particularly deferential to precedent. But there are good reasons for even the Supreme Court to stick with the established construction of statutes.

            • Snarki, child of Loki says:

              “…since at this point there aren’t a whole lot of minty fresh brand new constitutional questions on which to break new, precedent-free ground.”

              I understand that there’s was a 3rd Amendment case working its way up through the courts. Not sure where it stands now.

              And we really missed a chance to see a decent 12th Amendment case in 2000 (TX electors), but those wimpy low-level courts wouldn’t push it along.

        • ThrottleJockey says:

          well sticking with your arson metaphor, I’d say they’re trying to burn down the modern state.

    • Scott Lemieux says:

      I can’t recall a SCOTUS case so inherently built on a foundation of bullshit since atleast Bush v. Gore

      You must have missed Shelby County, although comparing the arguments a bare majority of the Court accepted to bullshit is an insult to the latter.

      • Gwen says:

        We’ll have to agree to disagree about Shelby County. The basic thrust of that decision is that the Constitution imposes certain limitations on the legislative process that can render the end product invalid. Obvs, I would agree that the line was drawn in the wrong place for the wrong reason, but I am not against line-drawing per se.

        The Hobby Lobby case, on the other hand, seems to involve a straw-man argument against a right-wing fantasy version of Obamacare.

        • efgoldman says:

          the Constitution imposes certain limitations on the legislative process that can render the end product invalid.

          Ahh, but if you believe (as the reactionaries certainly don’t) that the amendments are equal parts of the document, then the 14th and 15th insist on legislative remedies.

    • dp says:

      My feelings exactly. There is so much wrong with the plaintiffs’ arguments that one would run up against briefing limitations trying to catalog them all. And yet ….

  3. Aimai says:

    So, just to be clear, Everything that Davey has been saying for days is just completely false? Well, I swan.

  4. rm says:

    Let’s pause to realize the full horror of the fact that this evil nonsense argument has made it even this far. One hopes that Hobby Lobby loses, but one despairs at the thought that the question is even in doubt. Just shoot me.

  5. Hogan says:

    Tony Alamo, forsooth! I used to see his anti-Catholic tracts in the early ’80s; not bad, but no Jack Chick. Apparently he went on to greater things.

  6. Shakezula says:

    In my more cynical moments I wonder if these cases are the stepping stone to more corporate hijinks.

    • DAS says:

      I believe the phrase goes something to the effect of “no fecal matter, Mr. Holmes” but it’s somehow more alliterative.

      I also wonder whether the whole point of “Intelligent Design” is to get people thinking that evolutionary processes create miraculously well-designed outcomes such that they come to believe that any system based on “competition” and “survival of the fittest” (e.g. the Free Market(TM)) will produce divine results. I.e. I wonder whether the whole point of “Intelligent Design” is to muddy the intellectual waters to make people more accepting of Social Darwinism.

      • yinz says:

        i dunno, man. if your sole goal was to get people to accept social darwinism, wouldn’t you be better served by first convincing them to embrace biological darwinism/natural selection (you know, the very thing that the Intelligent Design crowd has been railing against for the past century+)?

        • DAS says:

          Goodness no. Actual scientific knowledge is the last thing you want people to have. Actual natural selection results in things like nose hair and photorespiration. You can’t have people realizing that natural selection leads to diphtheria toxin and ass hair if you want people to think that Social Darwinism will produce a better society or that the Invisible Hand will provide an optimal allocation of resources.

        • Lee Rudolph says:

          “Social Intelligent Design” doesn’t trip so easily off the tongue. Also it sounds too Communistical.

    • ThrottleJockey says:

      Yeah, its a total land grab by corporate interests and the reactionary Christian Right.

    • Javadavis says:

      I think there are at least two forks to this tongue.
      1) More control over employees, that is actual people, for corporations, always a plus and never enough.
      2) Make corporations equivalent to religious organizations for the purpose of business decisions, then segue to the taxation exemptions part of religious organizations.
      Eh Viola, we get to push around our employees and not pay taxes, all in the name of pushing a legitimate protected right to the ridiculous.

  7. DAS says:

    Lessee what the tally here is in terms of religious freedom of businesses/business owners

    * in Gallagher v. Crown Kosher Super Market of Massachusetts, Inc., SCOTUS ruled that a business owned by Sabbath observing Jews whose primary clientele was Sabbath observing Jews nevertheless had to remain closed on Sunday pursuit to state/local Blue Laws even though being closed on both Saturday and Sunday represented a burden both to the owners and also the customers of Crown Kosher

    * in Hobby Lobby vs. Reality, SCOTUS may very well rule that forcing a corporation to face a choice between paying for insurance that covers contraception and forgoing tax benefits represents an unconstitutional infringement on a corporation’s (how do you baptize a corporation?) religious rights

    Hmmm …

    Meanwhile, Hobby Lobby’s owners claim they are Christian? And this case involves taxes? I wonder what Jesus would have said about Hobby Lobby’s case? BTW, whose picture is on the dollar bill again?

    • Hogan says:

      Render unto Benjamin what which is Benjamin’s.

    • rm says:

      As is demonstrated by the SEK post below, Jesus got nothin’ to do with right-wing American christianity.

    • cpinva says:

      Gallagher v Crown Kosher was decided in 1961, which preceded a later decision (name escapes me) tossing out the state blue laws, under 1A.

      “(how do you baptize a corporation?)”

      more to the point, how do you execute one?

      ” I wonder what Jesus would have said about Hobby Lobby’s case?”

      I believe he spoke to that very issue; “render unto Caesar what is Caesar’s.”

  8. joe from Lowell says:

    Perhaps David N. can answer this question for me, because no one else has been able to:

    We have laws requiring employers to compensate their employees in American dollars, which those employees have the option of using to acquire birth control. Would I be right in assuming that you don’t consider these laws to burden the employers’ religious exercise?

    OK, then, what’s the difference between those laws and one that requires employers to provide com pension in the form of a health insurance policy that the employees could, if they choose, use to acquire contraception?

    • L2P says:

      I can tell you what the difference is to people practicing in ERISA.

      These benefits aren’t completely analogous to just giving employees money. Although the employer can choose to buy insurance on the open market, it can also self-insure. If it self-insures the ACA requires the business to provide contraceptives. Consequently, these regulations can actually require an employer to pay for their employees contraceptives directly.

      That’s their best argument on this point. However, it also makes Scott’s point even stronger. What’s the burden of not being self-insured? How much could that possibly cost the employer, particularly if they are one of the over-50-employees type of insurer that would actually be affected by it?

      Hard to see.

      • joe from Lowell says:

        OK, the self-insurance situation is different.

        • DrS says:

          Eh…not sure how their “right” to self insure would get them out of providing coverage that meets minimum standards.

          • joe from Lowell says:

            I’m not sure it does, either, but it’s a different argument.

            Companies that offer their employees an actual insurance plan are not involved in the decision to provide contraception. There is no action they’re taking that might be contrary to their religious beliefs; it’s entirely the employee, the insurance company, and the drug store that is involved. We don’t have to argue at all that the employer should have to do anything.

            But when a company self-insures, meaning the company itself covers the costs, they are actually signing off on the employees’ medical expenses. In this situation, we actually have to make the case that the employer should do this.

            • Scott Lemieux says:

              Right, but there’s no possible RFRA issue there, because they’re choosing the “burden” of self-insurance on their own.

              • L2P says:

                That’s apparently debatable. Self-insuring can be a big cost savings.

                Lots more employers self-insure than you probably think; what they do is insure the risk pool but have an insurance company actually handle all the billing and paperwork stuff. So you could have a “Blue Cross” insurance plan that is actually a self-insured insurance plan managed by Blue Cross. So for many it’s costing money to enter the insurance market. We usually don’t say that someone’s “choosing” the burden when it’s that, or pay a lot more money. We usually say they’re “forced” by economics.

                My understanding is, though, that the cost savings generally are pretty marginal. They might be “forced” to enter the insurance market, but the cost is certainly less than what the Court’s have already said isn’t significant.

                • Bijan Parsia says:

                  And not offering insurance is cheaper still (probably; at least in direct costs).

                  So they have several options.

                • Scott Lemieux says:

                  We usually don’t say that someone’s “choosing” the burden when it’s that, or pay a lot more money. We usually say they’re “forced” by economics.

                  However you might describe this colloquially, I’m not sure how this is relevant to RFRA. You’re not actually “forced” to buy a house because of the tax credit for mortgage interest.

                  Also, I’d like to note what an unattractive basis this is for making new law. “Our deep-seated religious beliefs mean that people have to be denied their statutory rights, but we certainly can’t be expected to follow our religious beliefs if it might cost us a buck.” You’ll forgive me if I don’t find this very compelling.

                • cpinva says:

                  “You’re not actually “forced” to buy a house because of the tax credit for mortgage interest.”

                  no, no you aren’t. however, you might want to buy instead of rent, to avail yourself of the itemized deductions for mortgage interest and real property taxes. there is no mortgage interest tax credit.

              • joe from Lowell says:

                I’m not saying that there is no burden to a company that self-insures so its insurance plan doesn’t have to conform to a neutrally-drafted insurance regulation.

                But if they’re asking for relief when such a reasonable option is available to them – this only covers companies with 50+ people – then the government better be making them dress in burkhas or something.

            • cpinva says:

              “I’m not sure it does, either, but it’s a different argument.”

              with the same fatal flaw: for-profit entities have no religious beliefs, period. they either decide to provide their employees health insurance, of a type that meets the minimum ACA requirements, in lieu of wages, or they don’t, and agree to pay whatever the penalty stipulated in law is. those are the company’s options.

            • Javadavis says:

              Sounds like the Little Sisters argument – without the additional proviso that opting out offers legitimacy to the part of the mandated minimum acceptable insurance standards.

      • Theo says:

        Let’s address this self-insured scenario. If I am not self-insured, I pay for insurance, which pays a doctor and pharmacy to provide contraceptives to my employee, should my employee choose to use them.

        If I am self-insured, one step is removed. I pay a doctor and pharmacy to provide contraceptives to my employee. I do not agree that being self-insured results in the employer providing contraceptives to an employee directly. There is always a doctor and/or pharmacy involved.

        The question is what religious significance does that removed step have?

        Perhaps we could solve this issue if the law required the self-insured employers to reimburse employees for contraceptives, rather than pay doctors and pharmacies to provide them prior. If they object, that would clarify that the objections are bunk, as reimbursements would be economically identical to giving their employees cash. Of course, I’m sure certain self-insured employers would prefer paying employees in “Jesus Bucks” instead of cash, which could only be used for religiously appropriate purchases.

        • joe from Lowell says:

          economically identical

          In financial value, yes, but they’re not making an argument about the financial value.

          They’re making a First Amendment argument.

          The middle man conducts a couple of significant actions here. 1) It ceases to be the employer’s money going to particular medical expenses. The employee is not spending the employer’s money, but the insurance company’s money, on contraception. 2) The employer is not performing an action – an invoice approval or whatnot – to play for the contraception.

          • Theo says:

            1) At what point does the employer’s money become the insurer’s money? And why is that distinction significant? I mean, in one scenario, EMP pays INS for INS to give money to PHARM to give drugs to EE. In the other, EMP pays PHARM to give drugs to EE. How is that different, morally, than EMP pays EE to give money to PHARM to give drugs to EE?

            2) That’s now how any self-insured program works that I know of. Self-insurers usually have Third-party administrators to handle claims processing.

            • DrS says:

              Just to add on to your point #2. It is very rare that a company that is self-insured actually handles the claims processing, etc. Self insured indicates that the employer is assuming the risk associated with covering the employees. The processing can still be handled by an insurer or by a third party processor.

              Even with 3rd party adminstration(TPA), there’s almost always also a link to an insurance company to use their network of contracted doctors and hospitals.

              Really, it comes down to when they are writing the check to some other entity, which is almost never, to my knowledge, the service provider. Instead of writing a check for premiums to an insurance company, they’ll write a check for paying claims + fees to an insurer/TPA.

            • joe from Lowell says:

              At what point does the employer’s money become the insurer’s money?

              The ordinary point: when the check clears. We don’t need a specialized definition here: the premiums go in and become part of the insurance company’s assets, and then the insurance company pays benefits out of its rock.

              How is that different, morally

              Morally? I was talking legally.

              2) I don’t know. My understanding is that this isn’t universally true for all expenses. Again, though, seems pretty far from “unduly burdensome.”

            • joe from Lowell says:

              Let me try again, Theo.

              My first question here was about paying employees in cash, which they might choose to spend a certain way.

              Once the money leaves the company’s hands, it’s not theirs to do with. Putting an additional middle man between the company and the employee moves the money further away from her – but it doesn’t move it any closer to the employer. He’s already given to someone else; in this case, it’s the insurance company not the employee.

              I consider the action of paying the money to the insurance company to take the employer out of the moral equation for the same reason I think that paying the employee with a paycheck takes the employer out of the moral equation for her purchases.

            • cpinva says:

              “1) At what point does the employer’s money become the insurer’s money?”

              after it passes through the employee’s hands. that the payment is not paid directly to the employee, doesn’t affect the fact that it is paid, as a non-taxable benefit, on behalf of said employee. under IRC 61, those benefits are taxable, as gross income, to the employee. it’s only IRC 125, that makes them exempt from tax, to said employee.

              the fact that the employee never had physical possession of the money is irrelevant.

        • Breadbaker says:

          The other question is, why would it matter? The Free Exercise Clause and the RFRA do not require that the government in no instance burden a religious choice. So it costs one employer more to not self-insure in order to accommodate the religious views of its owners. That self-insurance is (a) available; and (b) in this instance cheaper for the employer is not a religious choice by Congress. Therefore, if they want to avoid the religious conflict by buying insurance, they should and there is no constitutional infirmity. It would be like saying they should be allowed to spend the same on halal or kosher meat as on meat you goyim eat.

      • Chocolate Covered Cotton says:

        Isn’t there already a way to opt out though? Is it true that the “substantial burden” being claimed by HL is that they have to submit a form to claim a religious exemption which they think should just be assumed? Does this exemption apply to self-insured companies?

    • mpowell says:

      The thing about this type of religious exemption argument is that it’s whatever the person claiming the religious exemption says it is. In your case, the balancing would be different. It’s just really easy for a judge to write up a decision here that at least doesn’t directly contradict itself. Even if it is total bullshit.

    • David M. Nieporent says:

      We have laws requiring employers to compensate their employees in American dollars, which those employees have the option of using to acquire birth control. Would I be right in assuming that you don’t consider these laws to burden the employers’ religious exercise?

      Your question relies on the same fundamental error that Scott keeps making: trying to define for someone else what their religious views are. I cannot make the decision for anyone else whether a law burdens their religious exercise. If they say it does, it does. (Scott will likely resort to mocking that statement, but it is correct, both factually and as a matter of law.) I can predict whether they would hold that view, but I can’t decide whether they do.

      I can say that under my understanding of Jewish and Catholic doctrine — I have some knowledge of each, though I am neither a Halacha nor canon law expert by any means — neither would consider those laws to burden employers’ religious exercise. Whether evangelicals would necessarily agree, I’m not sure.

      But to jump ahead to the next portion of the inquiry: if an employer tried to get out of paying American dollars based on a claim that employees might use those dollars for birth control and that this would burden the employers’ religious exercise, the employer would fail, because the courts would rule that laws requiring such payment satisfied the RFRA tests of compelling interest/narrowly tailored.

      • sharculese says:

        I cannot make the decision for anyone else whether a law burdens their religious exercise. If they say it does, it does. (Scott will likely resort to mocking that statement, but it is correct, both factually and as a matter of law.)

        I’m going to go out on a limb and call this a lie, mostly because that’s a transparently idiotic way to run a society.

        (Yes, Davey, I know the concept of society makes you act like a big ol’ weiner. Your opinion is delusional. Deal with it.)

        • sharculese says:

          Also, I mean, you’re a liar so that’s another data point in my favor.

        • David M. Nieporent says:

          Yes, I know you prefer the Inquisition, in which the government decides what the correct religious beliefs one may hold are.

          • Aimai says:

            You know what, David? That’s another out and out lie that you’ve told on this thread. No liberal poster on this blog “prefers the Inquisition”–and it is incorrect to even gloss that, as you do, with “in which the government decides what the correct religious beliefs one may hold are.” The Inquisition was a para-government organization, in fact an international not national organization, that enforced the dogma of a super-state religion (Catholicism). It had a quite complicated relationship with the governments under which, or within which (more accurately) it flourished. But be that as it may of course no one here sides with any kind of inquisition, or ever would have. Its shameful that you would even say that to people who have demonstrated a devotion to a multicultural, mutually respectful, plural society.

            I get that you think that there’s some kind of exemption for lying about other people in debate class but in the real world people who lie about obvious stuff just deserve the massive contempt of everyone who reads their posts.

          • Javadavis says:

            Sorry, religious beliefs seem to be beside the point. The question that I see here is not whether an individual’s religious beliefs are legitimate, but whether a corporation – and not a religious organization – can be allowed to inflict the results of their religious beliefs on their employees.
            If the organization was not organized for religious purposes, then an argument about what those beliefs are is a red herring.

        • DrDick says:

          It is also the case that Justice Scalia has personally set a very high bar for what constitutes a burden in Oregon Employment Division v. Smith.

      • Scott Lemieux says:

        fundamental error that Scott keeps making: trying to define for someone else what their religious views are.

        Nope.

        I cannot make the decision for anyone else whether a law burdens their religious exercise. If they say it does, it does.

        Stated this way, this is actually defensible, at least in a case where (unlike this one) the parties bringing the litigation are legally required to do something. However, it is also irrelevant, because the law requires that there be a substantial burden. And as the government puts it in its amicus, “In holding that courts may not define or question an individual’s sincere religious beliefs, the Court in Thomas did not suggest that the courts must accept an individual’s contention that a burden on his religious exercise is sufficiently substantial to entitle him to relief.” The idea that Congress intended any bare assertion of religious conflict to trigger heightened scrutiny is farcical.

        • David M. Nieporent says:

          the Court in Thomas did not suggest that the courts must accept an individual’s contention that a burden on his religious exercise is sufficiently substantial to entitle him to relief

          That’s a disingenuous argument on the government’s part, in that the Court in Thomas didn’t suggest otherwise, either. It wouldn’t have made any sense for the Court to do so, because the burden being substantial, no matter how substantial, is never sufficient “to entitle him to relief.” (It’s not “minor burden = no relief”; “substantial burden = relief”.) Whether there’s a substantial burden is simply a threshold question to allow him to assert the claim.

          The word “substantial” simply doesn’t do the work you want it to. Thomas, as well as U.S. v. Lee and Hernandez v. Commissioner, make clear that it’s “substantial” if it leads to a violation of religious practice through comission or omission; it’s not substantial if it simply incidentally affects religious practice. But “incidental” is different than “indirect.” If your religion forbids paying taxes, then requiring you to pay taxes is a substantial burden (but you still lose!); if your religion does not forbid paying taxes, then requiring you to pay taxes may impact your religious practice (in that you have less money to spend on it), but it’s not a substantial burden.

          • DrDick says:

            Well, you would certainly know all about disingenuous arguments.

          • Scott Lemieux says:

            No, the government’s brief is correct. Nothing in Thomas supports your reading that any bare assertion of religious conflict is sufficient to establish a “substantial” burden. (It’s true that the burden in that case was indirect, but it doesn’t follow from this that any indirect burden is coercive.)

      • ThrottleJockey says:

        I can agree with the notion that a sin is what you think your religion says it is, not what I think your religion says it is, but to me this is just like laws banning the consumption of peyote or pot even though certain Native Americans and Rastafarians consider each, respectively, to be sacraments. The Constitution allows us to burden the free exercise of religion everyday, we simply can’t be selective/discriminatory about it, targeting one religion specifically, say as the French did in banning headscarves, etc. In the US men who think 1 Cor 11:2 means women cannot have authority over them nonetheless must comply with anti-discrimination laws. They don’t get an out just because they think their religion tells them otherwise.

        • DrDick says:

          The Native American Church is explicitly exempt from the federal law banning the use and possession of peyote, though they are still subject to state laws in a few states.

      • joe from Lowell says:

        I cannot make the decision for anyone else whether a law burdens their religious exercise. If they say it does, it does.

        We’re talking about the law; a law that even uses “substantial burden,” as opposed to a birder that doesn’t qualify and substantial. This theory of the impossibility of knowledge is not consistent with the statute or case law about substantial religious burdens. No, the existence of a plaintiff is not dispositive that the burden exists.

        But, yeah, let’s jump ahead. You’re actually saying that the requirement to pay employees in legal tender is a substantial burden (one that needs to be relieved by the “Exception” subsection). I’m not misunderstanding that?

      • Hogan says:

        Your question relies on the same fundamental error that Scott keeps making: trying to define for someone else what their religious views are. I cannot make the decision for anyone else whether a law burdens their religious exercise.

        Your whole argument depends on making “religious belief” identical with “substantial burden”: if I claim one, I’ve automatically and validly claimed the other. Are you saying RFRA actually does that?

        • Aimai says:

          Very good, Hogan. But really his whole argument rests on attacking people’s good faith assertion that the Hobby Lobby situation a) doesn’t fit the RFRA because for profit corporations don’t have religious identities. Following that he then attacks people’s good faith assertion that the burden is, in any event, not “substantial” as though they are arguing that the religious belief is the issue. No one is choosing to examine the particular dogma that the Green’s are advancing. We are either arguing that 1) The Greens are not the Corporation and so the acts of the Corporations are not those of the Greens or 2) the burden on the Greens is not substantial. No one is inquiring into or attempting to control the Green’s religious belief system–though many of us reserve the right to make fun of it.

          • Bijan Parsia says:

            a) doesn’t fit the RFRA because for profit corporations don’t have religious identities.

            From reading Lederman, I have come to think this is not really the issue. It’s possible to burden eg the directors by burdening the company. Similarly, directors aren’t completely shielded from responsibility for corporate wrongdoing. (Shareholders are more insulated, but the Greens are both owners and managers.)

            • Hogan says:

              And yet I’m not entirely free of the suspicion that although DMN wants to keep talking about “substantial burden,” he has more of an issue with the “compelling government interest” test. Guaranteeing universal access to affordable basic health care is not, in his world, any kind of government interest at all; it’s the worst kind of velvet-glove nanny-state tyranny. But that leaves less of an opportunity for the “liberals are the real fascists” line of argument than “oh no look at the poor persecuted believers.”

            • Aimai says:

              Directors aren’t shielded if they commit actual crimes themselves–like killing someone, or if they violate fiduciary duties to the shareholders by defrauding them. But I fail to see how this is at all analagous to those things. Hobby Lobby is not a church and there is no fiduciary duty to the shareholders that includes helping them get to heaven (for example) and no crime called “paying for insurance.”

              • Bijan Parsia says:

                Let me requote Lederman:

                The brief instead confirms that this case is, instead (as Judge Bacharach of the court of appeals recognized), about whether federal law coerces the Greens to violate a religious obligation in their capacities as corporate directors, i.e., decision-makers. (Four of the five individual plaintiffs in Hobby Lobby are the CEO, President, Vice-CEO and Vice President of Hobby Lobby; and one of those four is also the CEO of Mardel.)

                I don’t quite know how standing stuff works, but David says below that once Hobby Lobby itself was found to have standing, then didn’t bother with the rest. So I don’t think that forces the recognized (?) plaintiff to claim burden on themselves for their religious beliefs (which they don’t have in virtue of being a corporation), but merely that the regulation puts a burden on the religious beliefs of the directors (who happen to be shareholders).

                I think directors and CEOs can have all sorts of criminal liability even if they don’t directly commit the crime:

                The responsible corporate officer (RCO) doctrine holds that a corporate officer is indirectly liable for a subordinate’s criminal conduct when the officer is in a position of responsibility. The officer can be prosecuted if he has the authority and the ability to stop the offense and yet fails to act.

                The RCO doctrine does not require proof that the officer either participated in or authorized the crime.

                • Aimai says:

                  But it is the government that prosecutes crimes. Is god orosecuting these sins?

                • Bijan Parsia says:

                  I don’t understand your response.

                  Corporations exist to provide some separation between the owners, management, and employees and some actions they perform (via the corporation). Hence, limits on liability. But this separation isn’t super duper strong (indeed, it’s strongest in shielding assets, I’d guess). And, of course, in the end, all the actions “performed” by the corporation are performed by people. So, generally, liability (civil or criminal) starts with individuals and transmits up to the corporation and perhaps back down to various people in the corporation.

                  But then, so does moral responsibility and (one could imagine) certain sorts of burden on religious action. To take a simplistic example, if we required corporations to “be” Christian and this would be manifested by a Christmas day address by the CEO, this requirement would, I think, clearly impinge on lots of people’s religious liberty. (Perhaps, more realistically, if we required that contracts be formalised with an oath on a Bible, that would burden tons of people.) That it’s done “via” the corporation doesn’t really matter for this, does it?

                  Or to put it another way, the construct of “corporation” does not secure the owners/managers from everything, nor does it shield the government (potentially) from some consequences of regulating them.

                • Snarki, child of Loki says:

                  If being on the board of a corporation promoting sin is such a problem, then the Greens can RESIGN. If that’s not enough, they can SELL THEIR STOCK.

                • N__B says:

                  the Greens can RESIGN. If that’s not enough, they can SELL THEIR STOCK.

                  Have we ruled out seppuku?

                • Aimai says:

                  I think my point here, Bijan, is that we are analogizing a criminal act (for which a director of a company might face criminal liability under the law) to any other act (eating, drinking, worshipping, speaking) for which they do not face any criminal liability. You seem to be saying “because the corporate veil isn’t absolute and sometimes even directors/owners of corporations can be sued in propria persona then in this case their actions as private persons can be being seen as legislated by this law.” But thats just an analogy and I think a faulty one. 1) They are not acting.* 2) If they see themselves as acting that belief has no legal standing because it doesn’t relate to an actual, real world, legally defined action for which they can be held accountable/not accountable.

                  They are not “acting” because the purchasing of insurance isn’t the act of “distributing” or touching or permitting contraception use.

                  Take, for example, a Howard Hughes who suddenly decides that his religion tells him that he has the ability to see events happening on the moon and must prevent them with his thoughts or he will be guilty of murder. Fantasize he never so hard the law does not require him to stop these “murders on the moon” with his mind, does not find him liable if he doesn’t, but also doesn’t permit him to evade other legal duties because he firmly believes that he commits a sin if he takes his mind off his moon minding duties.

              • Bijan Parsia says:

                Hey Snarki, child of Loki:

                If being on the board of a corporation promoting sin is such a problem, then the Greens can RESIGN. If that’s not enough, they can SELL THEIR STOCK.

                Well, yes. Indeed, this is an argument against it being a substantial burden. The better argument, I think, is they aren’t doing anything. Selbius made the determination.


                Hey Aimai

                I think my point here, Bijan, is that we are analogizing a criminal act (for which a director of a company might face criminal liability under the law) to any other act (eating, drinking, worshipping, speaking) for which they do not face any criminal liability.

                Yes.

                You seem to be saying “because the corporate veil isn’t absolute and sometimes even directors/owners of corporations can be sued in propria persona then in this case their actions as private persons can be being seen as legislated by this law.”

                My point is that the separation between a corporation and actors within it is not absolute, thus it’s not immediate from “The regulations are on the *corporation*! The corporation is a separate person, and not the kind of present that has religious beliefs, thus no regulation of a corporation can burden a religious belief.”

                The fact that there is porosity in the corporate veil for various things means that you have to make the case that it isn’t actually letting burdens leak through problematically, rather than claiming that it *can’t* leak.

                But thats just an analogy and I think a faulty one. 1) They are not acting.*

                This is Lederman’s line, which I find convincing. But the plaintiff line is clever and not trivial to dismiss. It’s evil and wrong, but not trivial. And it’s definitely, afaict, not dismissible because of the nature of corporate personhood.

                2) If they see themselves as acting that belief has no legal standing because it doesn’t relate to an actual, real world, legally defined action for which they can be held accountable/not accountable.

                Well, that is a point of disanalogy, but the point of analogy wasn’t the nature of the contagion, but the *fact* of it. If I am not necessarily insulated from criminal liability by the corporation, then I may not be shielded from burdens placed on the corporation. That established a prima facie consideration of whether the alledgeburden is 1) a burden, 2) substantial, and 3) not warranted. You have to establish these three things (at least).

                They are not “acting” because the purchasing of insurance isn’t the act of “distributing” or touching or permitting contraception use.

                Yes, but their argument is that a decision makers for the company, they get problematically involved. (The analogy would be deciding to use a cocoa supplier knowing that they use slave labor. As Erik would argue, that doesn’t shield you from a moral connection to the slavery.)

                Now, Lederman points out that they aren’t deciding to provide contraception, but merely to provide an insurance plan and Selbius decided that those plans must cover contraception. That attacks the “they made a decision” line (i.e., that there’s a burden at all). As Scott and Lederman argue, even if there’s a burden (your religion says that you can’t provide a plan that someone else has constrained to provide contraception coverage), it’s hard to see how it’s substantial given that Hobby Lobby could 1) offer a plan without such converge and pay a fine, and 2) not over coverage at all and possibly save money in the bargain. (I also think it’s a narrowly tailored law addressing, uniformly, a general interest.)

                Take, for example, a Howard Hughes who suddenly decides that his religion tells him that he has the ability to see events happening on the moon and must prevent them with his thoughts or he will be guilty of murder. Fantasize he never so hard the law does not require him to stop these “murders on the moon” with his mind, does not find him liable if he doesn’t, but also doesn’t permit him to evade other legal duties because he firmly believes that he commits a sin if he takes his mind off his moon minding duties.

                Sorry, I don’t quite get this. The “with his thoughts” part makes it a bit tricky for me, so suppose he thinks he has to dance naked in a public mall to save the moon people. Public exposure laws most certainly substantially burden his religious practice (they forbid it!), but that’s ok because of the other aspects of the test (legit government interest; narrowly tailored, etc.). So, I agree. I also agree that Hobby Lobby should, as a condition of providing tax subsidised insurance, either pay the fine or provide plans with coverage. But I don’t think that that’s so because 1) the Greens have false beliefs (they do!) or 2) the corporation is so independent of them that there’s nothing we can do the corporation that would infringe on their beliefs (there are such things!), I just think that even if this is such a thing, they aren’t privileged.

                (I’m not a lawyer so this is all derived from reading Lederman. Nieporent, afaict, has gotten several of these details correct (or at least consistent with Lederman). Which pains me :)

      • joe from Lowell says:

        I cannot make the decision for anyone else whether a law burdens their religious exercise. If they say it does, it does.

        Interesting.

        When a legislature adopts regulations on abortion, the legislature gets broad deference about whether the burden they impose is undue.

        When they adopt regulations on insurance, it is literally impossible to disprove the claim that the burden is undue. The mere assertion that the legislature created an undue burden is sufficient to prove that they did.

  9. Nutella says:

    One thing that I’m surprised not to see in these discussions: A corporation is, by definition, NOT the same as its owner(s). Corporations exist in order to provide a different entity to handle liability for things the corporation and its officers and employees do.

    So couldn’t Hobby Lobby stop being a corporation and become a sole proprietorship? Then the owners can be liable for everything that happens in their stores while they’re micromanaging everything that happens to the health of their employees.

    • DAS says:

      I think the argument Hobby Lobby’s owners are making is that their corporation, as a person per Citizens United, is itself religiously opposed to birth control.

      Of course, what happens when Hobby Lobby (the corporation) decides that its religious views differ from its owners. Will Hobby Lobby decide to rebel by becoming a Satanist? A Wiccan? After all, if Hobby Lobby is a corporate entity that is legally distinguished from its owners, might it not have a different religion than its owners and come to its own decisions about what are its religious beliefs?

      • Lee Rudolph says:

        Like all corporations, it worships Moloch. Or possibly Cthulhu.

      • Nick says:

        IANAL, but as best I understand it Citizens United said *nothing* about “corporate personhood”. All it said was that (in the context of that case, not many others) SCOTUS takes “Congress shall Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;” to be absolute. That is, a law that forbids Lucy Jones from expressing and distributing thoughts about a presidential candidate based on who paid for the distribution is unconstitutional.

        I don’t think the decision relied on the notion of corporate personhood. It simply said that the people who write and act in and direct and produce a political ad have the right to do that, even if it’s paid for by a corporation, even if it’s 3 days before an election, because the 1st Amendment considers all of that to be “speech” and Congress can’t abridge it.

    • Bill Murray says:

      but then they can’t get the best of both worlds

    • Manju says:

      it doesn’t matter. corporations have long enjoyed 1A protection under the implicit freedom of association: the NY Times, Boy Scouts of America are both corporations.

      The question is whether or not they are expressive organizations. The 2 examples above are clearly that. Exxon-Mobil, obviously not.

      A commercial organization has less freedom to operate than an expressive one, but obviously the lines can blur.

    • Bijan Parsia says:

      It’s really worth reading the Lederman post:

      Moreover, Hobby Lobby’s brief confirms my surmise that the case is not fundamentally about coercing the Greens to pay for contraception, or the Greens’ religious exercise in their capacity as shareholders. (Indeed, there’s no allegation that the Greens even are shareholders of the two companies, or that “their” funds would be indirectly used to make the reimbursement payments: Hobby Lobby and Martel are operated by trusts.) Nor is it about the Greens’ capacities (if any) as administrators of the employee insurance plans. (The brief at several places asserts that federal law requires the Greens or the employers “to provide specific contraceptives” to employees (p. 15; see also pp. 34, 41). This is an unfortunate, perhaps inadvertent, shorthand. Of course federal law doesn’t require anyone–not even the insurance plans–to “provide contraceptives” to employees. The law merely requires that all insurance plans cover certain contraceptive services without cost, i.e., that plans guarantee employees they will be reimbursed if they choose to purchase such contraceptives.)

      The brief instead confirms that this case is, instead (as Judge Bacharach of the court of appeals recognized), about whether federal law coerces the Greens to violate a religious obligation in their capacities as corporate directors, i.e., decision-makers. (Four of the five individual plaintiffs in Hobby Lobby are the CEO, President, Vice-CEO and Vice President of Hobby Lobby; and one of those four is also the CEO of Mardel.)

      Indeed, the analogy Davy raised in the other post with Erik’s line about corporate responsibility for the manufacturing chain seems correct:

      As I noted in my earlier post, this emphasis on the individual plaintiffs’ role as company decision-makers makes sense, in light of how most people would treat analogous questions of moral culpability in other corporate contexts. Imagine, for example, that there were no federal law in the picture, and the Greens, acting in their capacity as Hobby Lobby directors, affirmatively chose to offer employees an insurance plan that included contraceptive coverage, and chose not to offer a competing plan that excluded such coverage. Of course, in that case, most observers would conclude that the Greens were morally responsible for the choice that they had made, just as many people concluded that corporate directors and CEOs were responsible for corporate decisions to invest in apartheid South Africa.

      The counter is also interesting:

      On the plaintiffs’ own view of the way the law works — by imposing a so-called “employer mandate” — once the HHS Rule goes into effect, it would not be the Greens who “chose,” in any practical sense, to cover contraception in the employee benefit plans: That would, instead, be a legal requirement imposed by the government that will apply to any and all such plans throughout the nation. It would be Kathleen Sebelius, in other words, rather than the Greens, who would be the relevant decision-maker–who would “direct” the employee benefit plans to provide reimbursement for contraceptive services.

      And, of course, they can decide not to offer insurance at all (the fines are only if they offer substandard insurance):

      Second, in a series of posts (see the Posts labeled III, III-A and III-B below) I have explained that, contrary to popular belief, there is no “employer mandate”: federal law does not in fact require any employer to offer contraceptive insurance to its employees. To be sure, if employers choose to offer their employees a health insurance plan, that plan must include many required features, including coverage of persons with pre-existing conditions, coverage for dependents up through age 26, and cost-free coverage of such services as immunizations, colo-rectal cancer screening, and women’s health services, including access to 18 contraceptive methods. But employers are legally entitled to decline to offer such an employee plan at all–and if they do so, it is likely that the direct effect would be a cost savings to the employer, even after accounting for a tax assessment that would be imposed on large employers such as Hobby Lobby, Martel, and Conestoga Wood.

      If their religious conviction is such that they feel they cannot be connected with insurance plans that cover potentially abortificant contraceptives (however rare the occurrence), then they are free not to offer health insurance and more than nominally so. (It’s not *trivial* in that they have some unwinding to do, but it seems like the *net* might be in their favour, or fairly low.)

      • Manju says:

        But Hobby Lobby, not the Greens, are the Plaintiff no?

        • Bijan Parsia says:

          Lederman:

          3. A holding that the three corporations at issue here–Hobby Lobby Stores, Inc., Mardel, Inc., and Conestoga Wood Specialties Corp.–have not alleged valid RFRA burdens on their own “religious exercise” hardly ends the case, because the religious exercise of the individuals who wholly own and operate those companies can be substantially burdened by laws that are imposed upon the companies . . . and those individuals are also plaintiffs in the cases.

        • David M. Nieporent says:

          Both Hobby Lobby and the Greens are plaintiffs. The Tenth Circuit ruled that Hobby Lobby had standing, and that it therefore need not address whether the Greens also did.

          In related cases, the DC Circuit ruled that the company did not have standing but the owners did. The Seventh Circuit ruled that both the company and owners had standing.

          The Third and Sixth ruled that neither did.

          In all of these cases, the owners and the companies were each plaintiffs.

      • Theo says:

        What’s the consequence to a large corporation that employs full-time employees of not offering insurance ?

        • Bijan Parsia says:

          It depends. In this tight labor market, they might well be able to pocket the difference and move on (which would be bad for workers). It’s not like there aren’t such employers already, I think.

          This is, of course, a worry wrt the ACA, i.e., that employers will start dumping their plans en masse (and without raising wages). Since people are fairly conditioned in the US to regard such benefit as a basic part of their compensation, it would be a while before it happened.

          Of course, if they did do that and even provided a wage increase to cover exchange based insurance (tricky! it’s much harder to argue that a person with a family deserves more *wages* than a person without; with current benefits as compensation, this difference is elided; so someone gets a pay cut) they exchange plans would all cover these forms of contraception.

          • Theo says:

            I was more interested the so-called “shared responsibility payment” that is required by larger employers that do not offer health insurance.

            • Bijan Parsia says:

              The IRS sez:

              Under the Employer Shared Responsibility provisions, if these employers do not offer affordable health coverage that provides a minimum level of coverage to their full-time employees (and their dependents), the employer may be subject to an Employer Shared Responsibility payment if at least one of its full-time employees receives a premium tax credit for purchasing individual coverage on one of the new Affordable Insurance Exchanges, also called a Health Insurance Marketplace (Marketplace).

      • Gregor Sansa says:

        potentially abortificant contraceptives (however rare the occurrence)

        I know that this is not your main point, but I want to repeat my point above. There is no evidence that any of these contraceptives, including plan B, EVER prevents implantation. There is clear, incontrovertible proof that it does in at least some cases work by preventing ovulation, which according to their silly religious logic would then prevent some ensoulled cell-clumps from naturally failing to implant. So by their logic, it is a GOOD thing.

        If the argument is just “this could arguably possibly prevent implantation according to an unproven hypothesis that some scientists might not laugh at” then the same goes for standing up. So by not providing reclining work options for all its female employees, Hobby Lobby is causing an unborn holocaust!

        • Bijan Parsia says:

          Aren’t they also concerned about IUDs?

          In any case, it doesn’t really matter for the purposes of the case whether they are right about the science. I think. Well, it might for this case, but I don’t think we want this to turn on whether the medical care is actually consistent with a religious belief.

          • Gregor Sansa says:

            For IUDs, it’s not entirely clear, but my reading of the evidence is that even those work through spermicide and/or preventing ovulation, not through preventing implantation.

            But the fact that they still talk about plan B when by all logic it is preventing “snowflake baby” deaths, gives away the game. Somebody who really cared about every fertilized ovum as a human being would be acting very differently from how they are acting. They do not care about that. They only care about patriarchal power; both their personal power, and that of the superstitions that they’ve built their identity around.

    • rea says:

      I hate this argument. If Hobby Lobby reorganizes as a partnership or sole proprietorship, does it win the case? Hell no!

      • Gregor Sansa says:

        Good point.

      • L2P says:

        But at least it has one, right?

        I actually like this argument. Not that many corporations can reorganize as a sole prop. Few big businesses can operate unless they’re a LLC or corporation or something similar. Hobby Lobby itself couldn’t reorg into a partnership, it’d be a disaster.

  10. Lurking Canadian says:

    I am not a lawyer, but I don’t see how they can write a decision that (1) lets Hobby Lobby get out of providing contraception coverage and (2) still lets cops bust Rastafarians for smoking weed. Either religion exempts you from the law, or it doesn’t. I don’t know how they can have it both ways.

    • Aimai says:

      But they will, Oscar, they will.

      • DrDick says:

        I am quite certain that Scalia will have absolutely no problems getting around:

        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.

        • Nathanael says:

          Every time the Supreme ExCourt makes another blatantly dishonest “fuck the law” ruling, it reduces the legitimacy of the courts.

          How long until we can just call them the “so-called courts” and set up our own courts? I’m not sure, but it’s happened before in other countries….

    • junker says:

      I think you’d be surprised at how nimble they can be.

      That being said, I’m sure if I wanted to I could find a few lines in the bible that, say, justified violating the minimum wage. Does that make the minimum wage something that violates religious freedom? I mean under this rubric how can any law really stand up to this burden?

      • Shakezula says:

        I was thinking a corporation could come up with a lot of ways to discriminate against women.

        For example, if you suddenly realize that you (or your corporation) believes that menstruating women are unclean …

      • DrDick says:

        “religion exempts you from the law” if the law substantially burdens your religion, unless (a) the law is in furtherance of a compelling government interest, and (b) the law is narrowly tailored to achieve that goal.

        Since the contested provision of the ACA does exactly that (by virtue of civil rights protections cited previously), you have just destroyed your own case.

      • George Zimmerman says:

        My religion requires me to shoot and kill unarmed blahs. Lucky for me, I’m legally protected.

    • Anonymous says:

      Right. It would be like someone who was a theoretically fervid states righter and not prone to expansive interpretations of the Commerce Clause arguing that the latter trumped state medical marijuana laws.

    • David M. Nieporent says:

      Either religion exempts you from the law, or it doesn’t.

      That is not what the RFRA says. The RFRA says that (to use your language, though inexact) “religion exempts you from the law” if the law substantially burdens your religion, unless (a) the law is in furtherance of a compelling government interest, and (b) the law is narrowly tailored to achieve that goal.

      Back in 2004, the Court did apply the RFRA to exempt a very small religious sect (O Centro Espirita Beneficente Unio do Vegetal) from laws banning the use of a particular obscure hallucinogen. But I suspect that the courts would find differently for marijuana; one of the points in favor of UDV was that there was virtually no risk of diversion because it was such an obscure drug. For marijuana, of course, the courts would likely find a much greater risk. (That was, after all, part of the rationale behind Raich.)

      • DrDick says:

        “religion exempts you from the law” if the law substantially burdens your religion, unless (a) the law is in furtherance of a compelling government interest, and (b) the law is narrowly tailored to achieve that goal.

        Since the contested provision of the ACA does exactly that (by virtue of civil rights protections cited previously), you have just destroyed your own case.

        • David M. Nieporent says:

          Ipse dixit is not actually an argument.

          • DrDick says:

            But that is exactly the argument you are making.

            • DrDick says:

              Also from the quote in the post to support my position (which Davey has failed to do for his):

              And whenever such a case has reached the Supreme Court – including Braunfeld v. Brown (1961), Newman v. Piggie Park Enterprises, Inc. (1968), and United States v. Lee (1982) – the Court has overwhelmingly or unanimously rejected it.

              • Josh G. says:

                U.S. v. Lee is especially on point. “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

              • DAS says:

                In all (un) due fairness to the argument being made by a fellow David, these decisions were made prior to the RFRA.

                I wonder how they would be decided now?

      • DAS says:

        What about Blue Laws? If someone were to challenge Paramus, NJ’s Blue Laws on the basis of “my religion says I can’t keep my business open on Saturday, so for Paramus to tell me I can’t keep my business open on Sunday — meaning I have to close my business two days of the week, giving my competitors an unfair advantage — is discriminating on the basis of religion”, would the challenge stand under RFRA?

  11. carolannie1949 says:

    Corporatism, oligarchy, religionism, plutocracy, and on and on are all based on one premise: there is some group of “priests” or “jackwelches” who know best how society is to be run, and we should have this sanctified by the SCOTUS and Congress.

  12. Rob Patterson says:

    “The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s
    participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.”

    O’Brien v. HHS (E. D. Mo. 2012).

    Even ignoring the plaintiffs’ hypocritical intent to disgard the corporate shield when convenient, and the Humpty Dumpty re-defining of “pregnant”, and all the other problems with plaintiffs’ case, it’s not a substantial burden on the practice of their religion. It. Just. Isn’t.

    • David M. Nieporent says:

      Well, with all due respect to the well-respected jurisprudence issuing from the Eastern District of Missouri, so far the Seventh, Tenth, and DC Circuits all disagree. (*) And the Supreme Court explained in Thomas v. Review Board that it’s up to the religious adherent, not the courts, to draw that line.

      (*) While the Third and Sixth Circuits rejected the RFRA claim, they did so on standing grounds, not on the grounds of a lack of substantial burden.

  13. N__B says:

    More off topic than usual, but Professor Pierce touched on Hobby Lobby and others of its ilk today.

  14. Josh G. says:

    As Brian Beutler points out, the claims made by Hobby Lobby contradict all legal precedent on how for-profit corporations are supposed to operate. Corporations are considered separate legal entities; they are not mere alter egos of their stockholders or owners. In fact, if the owner treats the corporation as such, then that’s justification for “piercing the corporate veil” and holding them personally responsible for the corporations’s torts and/or breaches of contract. But the Green family wants to have it both ways: limited liability for business practices, while still using the corporation as a sock-puppet for their personal religious views. It doesn’t work like that.

    Also, the fact that RFRA was passed in 1993, and PPACA was passed in 2010, should make all RFRA claims a non-factor. It’s a basic principle of legal interpretation that newer laws supersede older laws when the two conflict. It is true that the RFRA contains language purporting to control later legislation, but no Congress can bind the hands of its successors, so this should be considered null and void and without any legal force.

    • Aimai says:

      Maybe its too late for this but if Hobby Lobby is like any other American kitcsch corporation its shelves are largely stocked with crap from China–a country which still, as far as I know, has a forced abortion policy. If Hobby Lobby is so afeared of the pollution which comes from touching money which touches women’s icky bits and “causing” an abortion at that remove why are they not refusing to do business with China? Arguably the corporation is directly funding/subsidizing forced abortion in china in order to get access to cheap plastic flowers, frames, and other gimcrackery.

  15. [...] the eve of the Supreme Court’s oral argument in the Hobby Lobby case on whether for-profit corporations can deny access to contraceptives to employees through the [...]

  16. [...] Lobby et al. are asserting that a “substantial burden” has been created by provision that doesn’t require them to do anything. Instead, these cases illustrate the inevitable conflicts that result from too much government [...]

  17. [...] there’s an important point I want to highlight: We’ve already discussed one of his crucial points, namely that there is no contraception [...]

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  19. [...] in this case is so attenuated Hobby Lobby’s claim would have no chance otherwise. A provision that doesn’t force employers to do anything and places the burden for not complying with the law on third parties should not meet the RFRA [...]

  20. [...] you may recall, Republicans have convinced themselves that neutral regulations that don’t actually require companies or their managers to do anything represent a “substantial burden” on the Deeply Held Religious Principles of said [...]

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  27. […] provision in the Affordable Care Act requires corporations to offer insurance plans that meet minimum coverage standards if those corporations take advantage of tax […]

  28. […] Woods Specialties Store challenged was a provision that, according to the Huffington Post, “requires corporations to offer insurance plans that meet minimum coverage standards if those corporations take advantage of tax […]

  29. […] real issue here is that “A provision in the Affordable Care Act requires corporations to offer insurance plans that meet minimum coverage standards if those corporations take advantage of tax […]

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