Hobby Lobby: does RFRA violate the Establishment Clause?

In the 1997 case Boerne v. Flores, where the Supreme Court decided that the Religious Restoration and Freedom Act exceeded the Congres' Section 5 enforcement power as applied to the states, Justice John Paul Stevens issued a little remarked concurrence in the result. Justice Stevens wrote:

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.

If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52—55 (1985).

30 years ago, Justice Stevens' view would have been unremarkable, as it expressed the conventional view of the separation of church and state under our system of government. President John F. Kennedy famously pronounced "I believe in an America where the separation of church and state is absolute[.. . .], where no church or church school is granted any public funds or political preference[.]" How we have strayed from this core principle was well exemplified in yesterday's oral argument in the Hobby Lobby case.

In reaction to yesterday's argument, Ruth Marcus wrote:

[I]t is possible to imagine a for-profit corporation with an unquestionably religious outlook. At the argument, Justice Samuel Alito, citing a new Danish law, asked about banning kosher or halal butchers on the grounds that their practices are inhumane. I’m skeptical of the religious corporation, but I’ve got to admit: That’s one tough hypothetical.

Marcus' observation springs from the following exchange at oral argument:

JUSTICE ALITO: What about the implications of saying that no for-profit corporation can raise any sort of free exercise claim at all and nobody associated with the for-profit corporation can raise any sort of free exercise claim at all? Let me give you this example. According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane. Now, suppose Congress enacted something like that here. What would the -- what would a corporation that is a kosher or halal slaughterhouse do? They would simply -- they would have no recourse whatsoever. They couldn't even get a day in court. They couldn't raise a RFRA claim. They couldn't raise a First Amendment claim. [Emphasis supplied.]

After a meandering colloquy, the Solicitor General finally and reluctantly articulates what once was an uncontroversial view of the separation of church and state:

I think our response is what the Court said in Part 3 of the Lee opinion, which is that once you make a choice to go into the commercial sphere, which you certainly do when you incorporate as a for-profit corporation, you are making a choice to live by the rules that govern you and your competitors in the commercial sphere.

But Verilli quickly pivots (wisely in my opinion) from this once unremarkable proposition to argue about the impact on others, in this case the female employees of Hobby Lobby:

it will be the first time under the Free Exercise Clause or under RFRA in which this Court or any court has held that an employer may take -- may be granted an exemption that extinguishes statutorily-guaranteed benefits of fundamental importance. Lee came to exactly the opposite conclusion with respect to Social Security benefits, that you -- that it was imperative that the employee's interest be protected. And that is the fundamental problem with the position that my friends on the other side raise here, that they leave the third-party employees entirely out of the equation.

Leaving aside the absurdity of comparing a secular for profit corporation engaged in the procurement and sale of tschotkes and craft goods from slave labor and abortion promoting China (Hobby Lobby) to a butcher expressly dedicated to following religious dietary laws (the kosher butchers of Alito's example), the importance of the principles enunciated in United States v. Lee were passed over almost without comment by the conservative justices.

A little background on the Lee case is in order. Lee was a member of the Old Order Amish, who believe that there is a religiously based obligation to provide for their fellow members the kind of assistance, in the manner of Social Security. He asserted that paying Social Security taxes violated his First Amendment free exercise of religion rights and those of his employees.

The Lee Court rejected the claim. Importantly, the Lee Court enunciated the following principles:

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. 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. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. [Emphasis supplied]

Interestingly, Justice Stevens, who participated in both the Lee and Boerne decisions, expressed his views in a remarkably consistent and intellectually honest way. First, he rejected the idea that the government truly had a "compelling interest" in collecting Social Security taxes from the Amish, noting that the net effect would probably save the government money. Instead, Justice Stevens rejected the idea of religious accommodation in toto:

The Court's analysis supports a holding that there is virtually no room for a "constitutionally required exemption" on religious grounds from a valid tax law that is entirely neutral in its general application. 3 Because I agree with that holding, I concur in the judgment. [. . .]

In my opinion, the principal reason for adopting a strong presumption against such claims is not a matter of administrative convenience. It is the overriding interest in keeping the government—whether it be the legislature or the courts—out of the business of evaluating the relative merits of differing religious claims. The risk that governmental approval of some and disapproval of others will be perceived as favoring one religion over another is an important risk the Establishment Clause was designed to preclude.[Emphasis supplied.]

It is remarkable that this once traditional and dominant view of the separation of church and state no longer is even respectable enough to be articulated in our Supreme Court.

Something important has been lost to us.

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    I won't presume to comment (5.00 / 6) (#1)
    by CaptHowdy on Wed Mar 26, 2014 at 09:05:06 AM EST
    But just to say this is why I hang out here.

    I haven't written anything good in a while (5.00 / 8) (#2)
    by Big Tent Democrat on Wed Mar 26, 2014 at 09:18:53 AM EST
    I like this one.

    Thank you. Most of us aren't here (none / 0) (#12)
    by Mr Natural on Wed Mar 26, 2014 at 11:32:09 AM EST
    for the squabbling.

    Thank you (none / 0) (#84)
    by Towanda on Wed Mar 26, 2014 at 10:11:43 PM EST
    as this explicates the case law better than anything I find (readable for a non-lawyer at the end of long days), and I really wanted to have a better understanding of this.

    i have been wondering that very same thing. (none / 0) (#89)
    by cpinva on Thu Mar 27, 2014 at 02:07:37 AM EST
    it is my uninformed, non-lawyer opinion that the RFRA is definitionally violative of the establishment clause. i have wondered if it has, by itself, been challenged on that basis, as being an unconstitutional government establishment of religion?

    Thank you - a refreshing read (none / 0) (#109)
    by ruffian on Thu Mar 27, 2014 at 02:54:22 PM EST
    I like it when I can read something in just a few spare minutes and feel like I understand the issue. It is why I come here too.

    What I wonder is if the (5.00 / 2) (#3)
    by Ga6thDem on Wed Mar 26, 2014 at 09:23:28 AM EST
    court rules for Hobby Lobby doesn't this open up a can of worms all across the country. To me this is more far reaching that just Obamacare. I mean if you are the CEO of CVS wouldn't you want to ban Southern Baptists and Catholics from being hired as pharmacists? Muslims should be banned from working in any type of retail environment where pork is sold? Evangelicals should never be hired in retail stores that open on Sundays or hired to work at any restaurant?

    Coming out of self-imposed break to (5.00 / 2) (#4)
    by Anne on Wed Mar 26, 2014 at 10:06:02 AM EST
    say, first - excellent piece of writing; it's kind of killing me that the views expressed by Stevens in the excerpts you posted would not have been the government's strongest argument in the current case before the Court.

    Second - a question: could the decision in Citizens United affect the eventual outcome of this case by working against the kind of clear logic evidenced in the Lee decision? And if so, how do you see that coming about?

    Thanks for writing about this; I despair that the Court will get it right.

    We both have come out of hiding (5.00 / 4) (#5)
    by Big Tent Democrat on Wed Mar 26, 2014 at 10:33:36 AM EST
    I think I finally offered something worth coming out of hiding for.

    Hopefully I can keep it up.


    Will you (none / 0) (#10)
    by jbindc on Wed Mar 26, 2014 at 11:05:16 AM EST
    write on the Obamacare case that was heard in the DC Circuit yesterday regarding the subsidies (Halbig v. Sebelius), which actually would affect many more people than this case?  Or would you wait until it reaches the Supreme Court (if it does)?

    I'll wait for the opinion (none / 0) (#23)
    by Big Tent Democrat on Wed Mar 26, 2014 at 02:00:25 PM EST
    but it's going en banc imo.

    Great post (none / 0) (#63)
    by MO Blue on Wed Mar 26, 2014 at 06:23:55 PM EST
    On  a very important topic.



    Animal Rights (5.00 / 1) (#8)
    by squeaky on Wed Mar 26, 2014 at 10:55:49 AM EST
    I think that Alito's is not one tough hypothetical, it is very weak IMO. The premise of the Danish law banning Kosher and Halal slaughter rests on testimony by the Animals? How can they prove that stunning the animal prior to killing is more humane than killing an animal when it is conscious?

    I believe that Alito believes stun guns are a walk in the park and their use should be expanded. But IMO, shooting 10,000 volts of electricity through a living creature's body is torture.

    There is no basis, IMO, to suggest that stunning animals is more humane than the traditional halal and kosher method of slaughter.

    Whether or not what you say is accurate (none / 0) (#19)
    by Peter G on Wed Mar 26, 2014 at 01:37:49 PM EST
    about methods of animal slaughter for food purposes, it has nothing to do with the legal analysis suggested in Alito's hypothetical.  Nor does his advancing the hypothetical question in any way suggest what he "believes" (if anything) about slaughterhouse practices. The question was simply this:  if a legislature (state or federal) were to come to the conclusion that kosher/halal practices were inhumane to animals and should be banned (which says nothing at all about whether such practices are necessarily more or less humane than any others), would that law violate the First Amendment or RFRA rights of a butcher shop (that is, a commercial business) that was incorporated for the express purpose of providing kosher/halal meats to believers?

    I See.. (5.00 / 1) (#27)
    by squeaky on Wed Mar 26, 2014 at 02:15:07 PM EST
    Religious groups must adhere to the law, but when the laws change, there are bound to be problems. The halal and kosher butchers in Denmark are having problems, as is the Hobby company in this case.

    So if a religion had human sacrifice in its books, and it qualified as first degree murder by the law there would be no 1st amendment right to perform human sacrifice for the said religion.

    It does seem that the Butcher law is extreme because the butchers would lose all their customers if they adhered to the law, but it is a good example because it is extreme.

    It seems to me that the many problems will arise if the SC allows the Hobby Christians exemption. The fact that many people believe that abortion is against their religion is a belief, based on interpretation of religious texts, and of course backed by religious leaders who may claim to have heard from a god. It seems that many laws can be challenged by religious beliefs particularly when there is something to be gained by making an argument, like profits.

    If Hobby Lobby wants to take advantage of being a corporation and getting whatever benefits it has it seems that they should have to follow the law.

    They could form a church whose workers are all members and produce the crafts to other church members or anyone who wants to support them. But I imagine that would be less profitable than the operation that they have being a corporation. Wouldn't that make them exempt from following ACA contraception laws?


    Kagan (5.00 / 2) (#11)
    by squeaky on Wed Mar 26, 2014 at 11:11:38 AM EST
    But Justice Elena Kagan predicted that under Clement's approach, giving extreme deference to employers' free exercise claims, "You would see religious objectors come out of the woodwork with respect to all of these laws."

    Well that is funny, no?  Out of the woodwork.. hahha..

    I think that the ruling could be fine if there could also be law suits forcing the corporations who claim that religion trumps law, to comply with religious restrictions, rituals and scriptural commands that UN conveniently hurt their bottom line.

    Why should they be able to pick and choose which US laws are applicable? Shouldn't they be forced to adhere to religious laws and interpretations of those laws that hurt profits?

    Can't have it both ways.

    WOW (5.00 / 1) (#13)
    by squeaky on Wed Mar 26, 2014 at 12:40:53 PM EST
    Indeed, it would put the Court in the business of deciding what religious values are valid and which are not. This would turn the Establishment Clause on its head.

    Hobby Lobby would face harms if it didn't offer health care to its employees.  It would to be harder to attract workers, he said, adding that the company believes that providing health care to its employees is important.

    Sounds bogus argument to me...

    you have it correct, IMO:

    Hobby Lobby wants to engage in a war on women. Good for Justice Kagan for saying so.

    Joining forces in the ongoing WOW (war on women) with Alito, Scalia, Roberts, and Thomas.

    What about workers who want contraceptive care? Hobby lobby would not be able to attract those workers. And what about workers who did not want to work for a christian owned corporation? Hobby Lobby would be equally harmed by not vein able to attract those workers.

    And you have this right, IMO, regarding Roberts bending the rules for small family owned or other small closely held corporations:

    It makes no sense. there is nothing in the law that distinguishes between closely held and public traded corporations. And certainly nothing in RFRA.

    Time for shoppers to join forces too (5.00 / 2) (#15)
    by Militarytracy on Wed Mar 26, 2014 at 01:19:14 PM EST
    Since this started I haven't walked into Hobby Lobby, now it is likely I never will again.

    Chick fil A now expresses regret for its war on certain individuals, Papa Johns regrets his war on ACA, Red Lobster/Olive Garden regretted theirs too.  I didn't care for Chick fil A, but now that is never, I will never eat there, I will go hungry first.  Josh's fave pizza was Papa Johns but he easily switched to Marcos.  I'm done with these people, and can't be the only one because all these businesses expressed regret later.


    I'm not even (5.00 / 1) (#22)
    by Ga6thDem on Wed Mar 26, 2014 at 01:57:09 PM EST
    a huge fan of the ACA but what Papa John's did was so way over the top and ridiculous that I probably will never get their pizza again.

    Chick Fil A well, at least they are a good corporate citizen for the most part and he did back off what he did. I leave it to others to decide whether it's enough or not but a Zaxby's opened up right next to Chick Fil A near where i live so people have choices about this stuff.

    The nearest Hobby Lobby is a good 30 minutes or even more from my house so I have never gone there. Michael's has to be LITERALLY salivating at what Hobby Lobby is doing.


    And also (5.00 / 1) (#25)
    by Zorba on Wed Mar 26, 2014 at 02:06:59 PM EST
    AC Moore, don't forget.  Plus Jo-Ann Fabric and Craft stores, wherever they are located.     ;-)

    I know a few people who were cautious (5.00 / 1) (#30)
    by Militarytracy on Wed Mar 26, 2014 at 02:22:50 PM EST
    About Hobby Lobby and the Sundays off thing.  I was never cautious though because it was a certain day off for retail workers who so often can't count on any specific day off.  Hobby Lobby never said how their employees had to spend their Sundays so I was good with it, maybe very good is a better descriptor.

    I think they misunderstood the "tolerance" of some their shoppers though.  It wasn't that we were Christians in any way, we just understand how hard having a real life can be for retail workers.  I don't need stores open 24/7 if it means my community is healthier and happier.

    Now they are hurting people though.  Screw them!  And most of the individuals shopping Hobby Lobby seem to be women, how does this work out for them?


    Going to be a lot of (5.00 / 3) (#31)
    by Ga6thDem on Wed Mar 26, 2014 at 02:25:52 PM EST
    ticked off women going to the polls in November if the supreme court rules in favor of Hobby Lobby. Here we go again wiht another round of the "war on women" Buckle up ladies. It might be a bumpy ride.

    I can usually do as well as most (5.00 / 1) (#47)
    by CaptHowdy on Wed Mar 26, 2014 at 03:25:00 PM EST
    Laymen in understanding the cross currents of these things.  But this has been a tough one.   If I hear one more talking head use the term "slippery slope" I may have to throw something at my TV.

    But it seems to me that if hobby lobby wins it opens up a can of worms of unbelievable magnitude around the possibility of any business opting out of virtually any law for "religious" reasons.  Perhaps I would find this less odious if I were in any sense religious.  But I hope I would not.


    Why are we still (5.00 / 2) (#57)
    by Ga6thDem on Wed Mar 26, 2014 at 04:42:12 PM EST
    having a fight over birth control and I'm not including the morning after pill in that conversation. I'm talking about IUDs. These nut jobs see IUDs as abotificents? Some doctors recommend them for women who cannot take the birth control pills but of course the CEOs at Hobby Lobby and Southern Baptist ministers apparently think they know better than anybody in the medical community or the scientific community.

    I'm a Christian but I understand why people are moving away from religion in general when the face of religion largely has been these mean, spiteful and hateful evangelicals. The good thing is some of the younger evangelicals are moving away from all this.


    Not criticizing (none / 0) (#58)
    by CaptHowdy on Wed Mar 26, 2014 at 05:03:58 PM EST
    I know lots of real Christians. That being IMO people who follow the teachings of Christ.  I feel as much sympathy for those people as I do for Muslims who are called to answer for murderers. Both faiths have been hijacked by lunatics.

    I know (none / 0) (#59)
    by Ga6thDem on Wed Mar 26, 2014 at 05:16:14 PM EST
    you weren't but I also can understand why you are "not religious" The fact that you are "not religous" is not offensive to me like it is to a lot of other Christians who take it as an affort. I'm of the school that people are gonna do what they are gonna do and if they want to learn about your beliefs they generall will ask. If you start yammering about your beliefs to anybody and everybody well, you're probably going to run a lot of people away. Just IMO.

    I honestly don't think (none / 0) (#60)
    by CaptHowdy on Wed Mar 26, 2014 at 05:21:50 PM EST
    This is about faith .  I think it's about gender.  If men could get pregnant I promise you this would not be an issue.

    Actually (none / 0) (#101)
    by Ga6thDem on Thu Mar 27, 2014 at 09:15:37 AM EST
    is about faith but you have to realize included in that is the belief of Southern Baptists that women should not be able to make decsions for themselves. Those decisions should be left to their societal "betters" like their husband or their minister.

    Exactly my point (5.00 / 1) (#103)
    by CaptHowdy on Thu Mar 27, 2014 at 09:30:07 AM EST
    Thousands of years of gender bias cloaked in " faith"

    Not Cloaked in Faith (none / 0) (#104)
    by squeaky on Thu Mar 27, 2014 at 09:35:07 AM EST
    The church reflects societal norms, IOW sexism is an equal opportunity oppression.



    I think if the SC rules in Hobby Lobby's favor (5.00 / 6) (#92)
    by caseyOR on Thu Mar 27, 2014 at 08:50:11 AM EST
    we will see a huge uptick in small businesses refusing service to people they do not like. No cakes or catering or hall rentals for same-sex marriage. No accommodations in public and businesses for mothers who are breast-feeding.

    If a restaurant owner or motel owner claims some biblical source for his/her racism then no service for people of color.

    This goes far beyond contraception.


    An atheist can refuse to serve (none / 0) (#64)
    by Militarytracy on Wed Mar 26, 2014 at 07:38:23 PM EST
    Christians as well.  

    Did you see the essay from (5.00 / 2) (#65)
    by CaptHowdy on Wed Mar 26, 2014 at 07:57:46 PM EST
    The Quaker I posted below.  Click the link. It's an interesting read.  

    Quakers have always interested me (none / 0) (#68)
    by Militarytracy on Wed Mar 26, 2014 at 08:23:35 PM EST
    One of my fave authors is a Quaker and then the depiction of Quakers in Six Feet Under, has combined to make me infinitely curious.

    What is the name of the author? (none / 0) (#69)
    by oculus on Wed Mar 26, 2014 at 08:25:03 PM EST
    Not clear (none / 0) (#70)
    by CaptHowdy on Wed Mar 26, 2014 at 08:35:17 PM EST
    Someone named annalee

    If you dig roud enough on the site you can probably find it.


    What question were you answering? (none / 0) (#74)
    by oculus on Wed Mar 26, 2014 at 08:54:12 PM EST
    I thought you (none / 0) (#75)
    by CaptHowdy on Wed Mar 26, 2014 at 09:01:07 PM EST
    We're asking who wrote the Quaker essay.    Which s not obvious.

    Charlotte Kasl (none / 0) (#71)
    by Militarytracy on Wed Mar 26, 2014 at 08:38:50 PM EST
    Started with 'Women, Sex, and Addiction'.  I read it as part of my feminist readings.  She IMO has astonishing insight.  And she goes into female sexuality as if it were an onion, but one of the things that I came away with was that because our culture does not give our daughters permission to be sexual they are cut off from their sexuality and thereby being able to make good sexual decisions for themselves, our group sexuality has a lot of addictive behaviors in it because of that.

    Then she wrote 'If the Buddha Got Stuck' and I had to read that because her work on female sexuality was so good IMO.  She had more insights into staying on your path than any lama I have read so far, but she's a Quaker.  I have not read her 16 step work.  Maybe I should, and apply it to my Hillary trauma :)


    Oops (none / 0) (#73)
    by CaptHowdy on Wed Mar 26, 2014 at 08:43:02 PM EST
    Not talking to me

    Oh yeah (none / 0) (#66)
    by CaptHowdy on Wed Mar 26, 2014 at 08:00:22 PM EST
    I see you have

    At what point are owners of (5.00 / 3) (#14)
    by Anne on Wed Mar 26, 2014 at 01:14:33 PM EST
    Hobby Lobby/Mardel and Conestoga imposing their religious beliefs on their employees, to the detriment of those employees?

    To what extent does the free exercise of religion extend beyond the individual and allow the business owner to require all those in his employ to subscribe to them?

    At what point?? (2.00 / 1) (#29)
    by jimakaPPJ on Wed Mar 26, 2014 at 02:19:24 PM EST
    Oh please. These companies are not imposing their religious beliefs on anyone. They are just refusing to provide insurance that pays for a practice that they deem wrong.

    The individuals are free to purchase/practice  contraception as they desire.

    And I won't shed a tear either way the SC rules.

    Now, before you break out the whips and stun guns let me assure you that I am not against contraception.

    But I am against gross misstatement of the facts.


    They are taking (5.00 / 1) (#32)
    by Ga6thDem on Wed Mar 26, 2014 at 02:28:26 PM EST
    options away from their employees and they are claiming their beliefs are more important than their employees having options. Hobby Lobby is the one playing the religion card.

    Frankly they could let all their employees purchase insurance on the exchanges but apparently they want to control what their employees get in the way of insurance.


    Uh, no (none / 0) (#77)
    by jimakaPPJ on Wed Mar 26, 2014 at 09:34:18 PM EST
    Hobby Lobby is just saying they won't pay for two methods. Others are available.

    But even if they weren't the company is not taking the right of the employee to use contraception.

    And I believe any employee can drop the company provided insurance and use their own.

    I know that after I took an early retirement from one company I opted out of my new company's plan electing to retain what the previous one was providing.


    But they will cover getting the penis up (5.00 / 1) (#79)
    by Militarytracy on Wed Mar 26, 2014 at 09:52:43 PM EST
    After God breaks it. Sexist, misogynist, hypocrites

    Like I said (5.00 / 1) (#82)
    by CaptHowdy on Wed Mar 26, 2014 at 10:05:08 PM EST
    If men got pregnant we would not be talking about this

    wrong (5.00 / 4) (#91)
    by Ga6thDem on Thu Mar 27, 2014 at 07:26:20 AM EST
    read Anne's post below and if they win all birth control will be put at risk for coverage. Any business owned by a Catholic can refuse birth control. Businesses owned by Jehovah's Witnesses can refuse insurance with blood transfustions. Do you not realize what a CF this kind of thing can create in the country? Let's have a religious litmus test for everybody. No more pharmacists who are Southern Baptists or Catholics.

    A nice (2.00 / 2) (#95)
    by jimakaPPJ on Thu Mar 27, 2014 at 09:03:34 AM EST
    assumption but we all know what assume spells..

    Remember, the issue is specific methods, not all.


    No the issue (5.00 / 4) (#97)
    by Ga6thDem on Thu Mar 27, 2014 at 09:09:04 AM EST
    is if people can use their religious beliefs to deny people certain things. You are completely off base with this one but then maybe you are okay with this kind of nonsense. Are you really clueless enough to realize that this is about more than birth control and what a can of worms this opens up? I guess not.

    Sorry, Jim, but a corporate employer ... (5.00 / 1) (#90)
    by Donald from Hawaii on Thu Mar 27, 2014 at 05:49:27 AM EST
    ... has no business limiting the personal reproductive choices for its female employees based solely upon the management's own religious beliefs. Such decisions are the exclusive province of a woman and her health care provider, and shouldn't concern anyone else.

    I find it unconscionable that the folks at Hobby Lobby would insert themselves into that private discussion, and further shroud themselves so foolishly in such a patently false cloak of personal moral superiority.

    Such religious-based exclusions are simply ignorance and sexism by another name. If they can't bring themselves to do the right thing by others, particularly their female employees, then I'll exercise my own personal right to take my business elsewhere. I refuse to patronize bigots.



    Not sorry, Donald (none / 0) (#98)
    by jimakaPPJ on Thu Mar 27, 2014 at 09:09:15 AM EST
    No one is limiting the personal reproductive choices for anyone.

    The employee can do as they choose, even...GASP!!!! pay for the method they chose.

    Freedom. What a concept.

    And I find your outrage typical of far too many on the Left and Right.


    Query. At DK, Armando's comment to this diary (5.00 / 1) (#18)
    by oculus on Wed Mar 26, 2014 at 01:34:39 PM EST
    states Hobby Lobby employee insurance included coverage for contraceptives prior to the ACA.

    Was this point included in the briefs and/or addressed during oral argument?  

    When did Hobby Lobby "get religion"????

    As I understand it (none / 0) (#20)
    by jbindc on Wed Mar 26, 2014 at 01:40:03 PM EST
    Hobby Lobby's owners. the Green family, do not object to covering most contraception, including the pill, diaphragms, and condoms.  They are opposed to covering RU-486 and Ella (the "week after pill"), as well as two types of IUD's ("abortiofacients").

    The Green family members signed a formal commitment to run the two chains according to Christian religious principles -- closing on Sunday, advertising their religious orientation, and playing religious music in the stores.   The owners and their stores do not object to every part of the contraceptive mandate, but they do object to the use of any drugs or intrauterine devices that -- in the words of their lawyers -- "end human life after conception."


    The other company is Conestoga Wood Specialties Corp., a company based in East Earl, Pennsylvania, that also has operations in other states, making wooden cabinets and wood specialty products.  It has about 950 employees.

    The company is owned by members of the Hahn family, who are Mennonite Christians.  Their faith teaches them that it is wrong to take a human life and to prevent its creation through drugs and intrauterine devices.  If the company or its owners were to violate the mandate to adhere to their beliefs, they estimate that they would face financial penalties of about $35 million a year.

    Actually, I don't think it matters (none / 0) (#28)
    by nycstray on Wed Mar 26, 2014 at 02:17:02 PM EST
    that HL would 'allow' 'some' types, because it sounds as if CWSC has a problem with all types:

    and to prevent its creation through drugs and intrauterine devices.

    It still comes down to the same issue in the end, what right do they have to push their religion on others via a corporate workplace and deny them their rights/choices as employees/humans.


    Come on nystray that is a misstatenment (none / 0) (#33)
    by jimakaPPJ on Wed Mar 26, 2014 at 02:29:56 PM EST
    No one is having their right to choose or not chose contraception.

    The employee has no right to force the employer to provide ANY health care insurance. The government has no right either.

    What we have here is a major kerfunkle because Obama is trying to force some people to do things while letting others slide. The basic unfairness of this is as apparent as a pimple on the end of your nose.

    If the government wants to become involved then it should scrap Obamacare and institute a single payer system modeled on Medicare and paid for via federal sales tax.

    But that would hurt Obama's base... they'd have to pay the same tax as everyone else.. and the insurance companies would never forgive the Democrats because they would be shut out of their place at the trough.


    Gads, my typing is terrible (none / 0) (#35)
    by jimakaPPJ on Wed Mar 26, 2014 at 02:32:03 PM EST
    No one is having their right to choose or not choose contraception taken away.

    It's at least as good as your reasoning (5.00 / 3) (#76)
    by CaptHowdy on Wed Mar 26, 2014 at 09:09:04 PM EST
    What is being taken away is the right to have medication used by 95 percent of women and often not even for contraception paid for by their insurance.  

    I'll ignore your slur beyond (2.00 / 1) (#78)
    by jimakaPPJ on Wed Mar 26, 2014 at 09:47:23 PM EST
    noting that I see that your absence hasn't improved your ability to think logically or knowing the facts.

    First of all, the issue isn't ALL contraception methods:

    The case argued Tuesday involves family-owned companies, including Hobby Lobby, that provide health insurance to their employees, but object to covering certain methods of birth control that they say can work after conception, in violation of their religious beliefs.


    The owners of Hobby Lobby and Conestoga Wood Specialties don't have a problem with offering insurance that covers most forms of birth control, but they aren't willing to cover emergency contraceptives -- like Plan B or ella -- or IUDs.


    (That's FNC and Washington Post agreeing.)

    So right of the bat, 95% do not use these methods for contraception on a daily basis.


    So what? (5.00 / 3) (#80)
    by Yman on Wed Mar 26, 2014 at 09:55:19 PM EST
    Employers shouldn't decide what forms of birth control you decide to use.

    Why bother (5.00 / 2) (#81)
    by CaptHowdy on Wed Mar 26, 2014 at 10:03:21 PM EST
    Everything I have read says if they can decide which is available all are at risk.  But like I said why bother

    Employe health coverage ... (5.00 / 2) (#83)
    by Yman on Wed Mar 26, 2014 at 10:10:14 PM EST
    ... is earned compensation.  The employer has no right to tell the employee how they should use that earned compensation.  

    Maybe if they were telling trying to cut compensation for employees that engaged in other forms of "immoral" behavior ... gambling, drinking ...


    Exactly... (5.00 / 2) (#85)
    by unitron on Wed Mar 26, 2014 at 11:34:33 PM EST
    ...that's the issue most everybody seems to be ignoring or incapable of grasping in the first place--anything that's part of the employee's overall compensation package, including health insurance, is something that is earned by the employee, and is therefore the property of the employee.

    It's not Hobby Lobby's money that's buying the insurance, it's the employee's money.


    Unitron, it's interesting to see (5.00 / 4) (#87)
    by Towanda on Wed Mar 26, 2014 at 11:56:05 PM EST
    that this is a struggle for people to understand about a private corporation.  And it's surprising for me to see it, too, as a public-sector employee.  We hear such nonsense all of the time -- "you work for me, the taxpayer, so your pension belongs to me!" -- about our benefits, but I thought that the idjits abounding around us would not imagine that it was so for the private sector.

    Look, taxpayer:  See my pay stub?  See my total pay this month?  Now, see the sums taken out of it -- out of my pay, thankyouverymuch -- for my pension? That means that I paid into it, from my pay.  You did not pay into my fund.  You paid me, for work done (and da*n well, I might add), and then it became my money, from which I paid into it.  No matching from my employer -- from you, taxpayer.

    And that I have a good pension fund, because it's employee-run, too, does not mean that you get to raid it, taxpayer, because you did not save, as I did, by paying into it for decades.  That's my savings plan.  You're sorry now that you didn't save from your pay?  Build a time machine.


    Even stuff that doesn't show... (5.00 / 2) (#113)
    by unitron on Thu Mar 27, 2014 at 06:49:28 PM EST
    ...on your pay stub, like the other half of SS pay-ins, is stuff that you actually earned, regardless of how they do the bookkeeping.

    If the employer couldn't cover all of the costs of having you as an employee with the value which your employment brings them, either that position wouldn't exist or somebody else who does the job better would be holding it.


    The question is (none / 0) (#100)
    by jimakaPPJ on Thu Mar 27, 2014 at 09:14:04 AM EST
    did you completely pay for the plan?? That would include managing it and other administrative costs.

    But yes. Once you are paid the money is yours.

    But the employer has the right to tell you what the compensation is and you have the right to quit.


    The question now is (5.00 / 3) (#106)
    by Towanda on Thu Mar 27, 2014 at 11:42:39 AM EST
    whether you read what I wrote:

    No matching from my employer.

    An employee-run pension plan.  That means, Jim, we own it, we run it, we pay admins to manage it, etc.

    As for the rest, also:  Duh.


    Well duh to you for being a snark (2.00 / 1) (#125)
    by jimakaPPJ on Sat Mar 29, 2014 at 10:16:34 PM EST
    All I did was ask a question.

    A little sensitive, eh?


    What they are telling (none / 0) (#99)
    by jimakaPPJ on Thu Mar 27, 2014 at 09:11:12 AM EST
    them is what the compensation is.

    You know, I left a job and took another because I didn't think the compensation was right.


    Once you become an employer ... (none / 0) (#115)
    by Yman on Thu Mar 27, 2014 at 06:59:42 PM EST
    ... you have to abide by the law.

    Not to mention the fact that they certainly didn't tell them before they were hired.

    But given your experience, I can see how that would benefit some of those former employers.


    Ah yes. Yes indeed (none / 0) (#126)
    by jimakaPPJ on Sat Mar 29, 2014 at 10:18:56 PM EST
    The question is, is the law constitutional??

    Of course you have no knowledge as to my experience or performance.

    But thanks for proving that all you can do is make personal attacks.


    Ah yes. Yes indeed (none / 0) (#127)
    by jimakaPPJ on Sat Mar 29, 2014 at 10:19:08 PM EST
    The question is, is the law constitutional??

    Of course you have no knowledge as to my experience or performance.

    But thanks for proving that all you can do is make personal attacks.


    And smoking??? (none / 0) (#102)
    by jimakaPPJ on Thu Mar 27, 2014 at 09:16:50 AM EST
    mmoral" behavior ... gambling, drinking ..

    I think several companies have "adjusted" compensation for smokers vs non smokers..

    Of course that's a vice you seem to like!



    Probably because ... (5.00 / 1) (#114)
    by Yman on Thu Mar 27, 2014 at 06:53:19 PM EST
    ... there's a direct correlation in lost productivity and increased costs of at least $6,000 per year for employees that smoke.

    Wonder how much it costs employers when their employees don't get pregnant?


    Is not getting pregnant in the Constitution?? (none / 0) (#124)
    by jimakaPPJ on Sat Mar 29, 2014 at 10:14:31 PM EST
    Of course not.

    Yman, it is easy to see that you put money in front of the Constitution.

    That says all we need to know about you.


    Maybe if you read slower (5.00 / 1) (#128)
    by Yman on Sun Mar 30, 2014 at 10:19:09 AM EST
    It might help.

    I thought they just didn't want to pay for abortion services for their employees. Those employees certainly continue to have their rights, don't they?

    Here's some info to ponder: (5.00 / 2) (#43)
    by Anne on Wed Mar 26, 2014 at 02:58:02 PM EST
    Regulations issued under the Affordable Care Act require the companies to provide their female employees with health insurance that includes no-cost access to twenty forms of birth control.  The families, however, object on religious grounds to providing four of those forms - two brands of the emergency "morning after" pill and two kinds of interuterine devices (IUDs) - that prevent embryos from implanting in a woman's uterus.  Because they believe that human life begins at conception, the families therefore believe that if the corporations were to cover those four forms of birth control, they would in essence be "complicit in abortion."

    From Scotusblog.

    One of the problems - and something that I don't believe was challenged by the government - is that morning-after contraception is not an abortifacient:

    Emergency contraceptive pills work before pregnancy begins. According to leading medical authorities - such as the National Institutes of Health and the American College of Obstetricians and Gynecologists - pregnancy begins when the fertilized egg implants in the lining of a woman's uterus. Implantation begins five to seven days after sperm fertilizes the egg, and the process is completed several days later. Emergency contraception will not work if a woman is already pregnant.

    The way emergency contraceptive pills work depends on where you are in your monthly cycle when you take them. EC works primarily, or perhaps exclusively, by delaying or inhibiting ovulation (release of your egg). It is possible that EC may affect the movement of egg or sperm (making them less likely to meet), interfere with the fertilization process, or prevent implantation of a fertilized egg. The copper in Copper-T IUDs can prevent sperm from fertilizing an egg and may also prevent implantation of a fertilized egg.  

     Link  Bold is mine.

    So, do Hobby Lobby's religious beliefs allow them to define pregnancy differently than recognized medical and scientific authorities?  And allow them to define it for all their female employees of child-bearing age?  And what happens if they prevail?  Will Hobby Lobby have somehow managed to reinforce the case that "life begins at conception?"  And where does that take us?

    I may be overthinking this - wouldn't be the first time - but I've come to the point where I see cases like this as ultimately being one more attack on reproductive freedom.

    And I sure wish I knew how Hobby Lobby's religious beliefs allowed them to justify their association with the Chinese, the government of forced abortions.  


    If their religious beliefs... (5.00 / 2) (#110)
    by unitron on Thu Mar 27, 2014 at 05:59:29 PM EST
    ...allow them to ignore medical science and define pregnancy as they see fit, what happens when they decide to do the same with diabetes, cancer, schizophrenia, athlete's foot, or the common cold?

    Perhaps this will explain it all for you (5.00 / 2) (#129)
    by Peter G on Sun Mar 30, 2014 at 02:01:31 PM EST
    a cartoon on the subject by Brian McFadden in the Sunday New York Times

    re: pregnancy, in fact I'm not sure where that concept even came from.

    From what I've seen conception is the trigger for them, and they rely completely on accepted science for its definition.


    Not sure what you've seen, ... (5.00 / 2) (#116)
    by Yman on Thu Mar 27, 2014 at 07:19:14 PM EST
    ... but the medical community and federal law agree that pregnancy does not begin at conception, but at implantation.  They're trying to redefine the medical and legal definition of pregnancy to comply with their religious beliefs.

    I must be missing something, sincerely, (none / 0) (#117)
    by sarcastic unnamed one on Thu Mar 27, 2014 at 07:58:13 PM EST
    what does pregnancy have to do with HL?

    afaik, they believe life begins at conception, hence their opposition to stuff that messes with the fertilized egg post-conception.



    No (5.00 / 3) (#120)
    by Yman on Thu Mar 27, 2014 at 09:19:13 PM EST
    The Greens are objecting to certain types of contraceptives that they claim are abortifacients.

    A new government health care mandate says that our family business must provide what I believe are abortion-causing drugs as part of our health insurance. Being Christians, we don't pay for drugs that might cause abortions.

    The science and medicine are clear - IUDs and morning-after pills are contraceptives, and prevent pregnancy by blocking ovulation, not by terminating a fertilized egg.

    The company argues that emergency contraception pills, such as Ella and Plan B, destroy fertilized eggs by interfering with implantation in the uterus. Hobby Lobby's owners consider this abortion. But the pills don't work that way. When Plan B first came on the market in 1999, its mechanism for preventing unplanned pregnancies wasn't entirely clear. That's why the FDA-approved labeling reflected some uncertainty and said that the pills "theoretically" prevent pregnancy by interfering with implantation. Since then, though, there has been a lot of research on how these pills work, and the findings are definitive: They prevent pregnancy by blocking ovulation. In fact, they don't work once ovulation has occurred. As Corbin recently wrote in a law review article, "Every reputable scientific study to examine Plan B's mechanism has concluded that these pills prevent fertilization from occurring in the first place...In short, Plan B is contraception."

    Labels on these products have been updated in Europe to reflect the science, and the Catholic Church in Germany dropped its opposition to local Catholic hospitals providing emergency contraception to rape victims after reviewing the evidence. The science is so clear, in fact, that even Dennis Miller, an abortion foe and director of the bioethics center at the Christian Cedarville University, concluded that emergency contraception drugs don't cause abortions.

    What's even funnier is the Greens admit in their complaint that their company covered Plan B and Ella before thought about filing suit in 2012.

    The burden of this coverage was apparently so insignificant that God, and Hobby Lobby executives, never noticed it until the mandate became a political issue.

    Thanks, "abortion-causing drugs," (none / 0) (#122)
    by sarcastic unnamed one on Fri Mar 28, 2014 at 12:53:27 PM EST
    that is the phrase I was not aware of.

    I see that that is what Green said colloquially to the USA Today, but is it also the legal verbiage/concept used in the actual lawsuit? I was unable to find a copy of the lawsuit.

    However it looks like HL objects to these 4 things: hormonal IUDs, copper IUDs, Plan B and Ella.

    I think there is still some lack of certainty as to whether IUD's prevent implantation of ovum thereby terminating a fertilzed egg:

    The Copper-T IUD does not affect ovulation, but it can prevent sperm from fertilizing an egg. It may also prevent implantation of a fertilized egg.
    There are two main types of IUDs:

    Progestin-releasing IUD (Mirena, Skyla): 
Like other progesterone-based forms of contraception, this device causes the cervical mucus to thicken, which keeps sperm from reaching an egg. The hormone also thins the uterine lining, preventing an egg that does get fertilized from implanting. The Mirena lasts up to five years. Skyla, which was approved by the FDA in 2013, delivers a lower dose of hormones, is slightly smaller, and last up to three years.

    Copper-coil IUD (ParaGard, made by Barr Pharmaceuticals):
 This IUD slowly releases copper ions for up to 10 years. Copper inhibits sperm and the egg's ability to implant in the uterine wall. 

    I could find little to support the contention that Plan B prevents implantation, although it seems there is less research and less certainty about Ella.

    However, recent evidence strongly suggests that Plan B One-Step and Next Choice do not inhibit implantation. It's not clear if the same is true for Ella.

    It's the same language (5.00 / 1) (#123)
    by Yman on Fri Mar 28, 2014 at 07:35:38 PM EST
    If you google Sebellius vs. Hobby Lobby, you'll find their brief.

    ... and "not clear" if something is true is not evidence that the opposite is true.  More importantly, while the Greens may cal these drugs and devices abortifacients, federal law and the scientific community agree that pregnancy begins at implantation, not conception.


    Good points. (none / 0) (#51)
    by sarcastic unnamed one on Wed Mar 26, 2014 at 03:48:05 PM EST
    You've made me dig into this further.

    I was under the impression that when taken at high doses the drugs HL opposes caused implanted fertilized eggs to die or release from the uterus, or something similar.

    I cannot find anything, now, that supports that impression, so I thank you for that.

    The drugs & IUDs HL opposes have several mechanisms of action, one being preventing a fertilized egg from implanting following conception.

    Since HL contends that life begins at conception, they object to drugs and IUDs that can prevent the fertilized egg from implanting following conception.

    Do I have this correct?


    I do not think you are over-thinking (none / 0) (#56)
    by KeysDan on Wed Mar 26, 2014 at 04:22:19 PM EST
    this, at all.  Scientific understanding of human reproduction vs. self-defined, cultish or religious concepts are fundamental, in my view, not only to interpretation of law in this area,  but also, to its casting into law.  We know all too well the nascent understanding for, and ignorance of,  human reproduction (for example, cf. Todd Aiken).  

     However, it will play into the Supreme Court's ruling, and Chief Justice Roberts may not be that far ahead of Mr. Aiken.  In an exchange at argument,  Solicitor General Verrilli acknowledged, in a response to Justice Kennedy, that a for profit corporation could be forced to pay for abortion and be powerless to object on religious grounds.  However, he underscored Kennedy's hypothetical by stating that there was no such law on the books.

    Chief Justice Roberts was puzzled saying "I thought that was what we had before us."  Mr. Verrilli found it necessary to clarify by pointing out: " We've got about two million women who rely on the I.U.D. as a method of birth control in this country.  I don't think they think they are engaged in abortion in doing that."    Mr. Verilli was diplomatic, if not deferential, but he could have referenced scientifically based and accepted mechanisms of conception control-- on what the Court had before them.


    That one's easy... (none / 0) (#111)
    by unitron on Thu Mar 27, 2014 at 06:02:24 PM EST
    "And I sure wish I knew how Hobby Lobby's religious beliefs allowed them to justify their association with the Chinese, the government of forced abortions."

    ...profits uber alles.


    I think (none / 0) (#37)
    by jbindc on Wed Mar 26, 2014 at 02:34:03 PM EST
    that's kind of the point of the lawsuit.

    Yes, they are. (none / 0) (#48)
    by nycstray on Wed Mar 26, 2014 at 03:28:44 PM EST
    And they are opening up the door for others to do them same (if they win).

    The sincerity of the belief (none / 0) (#21)
    by Big Tent Democrat on Wed Mar 26, 2014 at 01:48:22 PM EST
    is practically presumed.

    Which in my opinion, based on decades (5.00 / 4) (#26)
    by Peter G on Wed Mar 26, 2014 at 02:09:05 PM EST
    of experience counseling and representing conscientious objectors to the draft and military service, it should not be. It's tricky to assess sincerity objectively, without (impermissibly) challenging the substance of the asserted religious beliefs, but it is essential to any system of accommodation.

    They have always had religion :) (none / 0) (#38)
    by Militarytracy on Wed Mar 26, 2014 at 02:34:45 PM EST
    Get Your Fake Conscience Objections Off My Lawn (5.00 / 3) (#62)
    by CaptHowdy on Wed Mar 26, 2014 at 06:14:37 PM EST
    As it happens, I know a little something about conscience protection. I'm a Quaker-one of the groups for whom the first conscience protection laws were created.
    If the Green family's conscience really forbids them from meeting their legal obligations under the Affordable Care Act, then they have the option to arrange their lives so as not to incur those obligations. They can choose not to run a two billion dollar corporation.

    But if they're not willing to make those sacrifices-if their `conscience' only compels them so far as they can follow it for free-then they are not conscientious objectors.

    And they and their fake conscience objection can get the hell off my lawn.


    I don't do ratings... (none / 0) (#86)
    by unitron on Wed Mar 26, 2014 at 11:39:27 PM EST
    ...here at TL (and I'm not crazy about the way they seem to screw up chronological order), but if this were Slashdot or one of the sites created as part of the Beta Backlash to it, your comment would certainly deserve a +5, Insightful

    Ratings (5.00 / 1) (#93)
    by squeaky on Thu Mar 27, 2014 at 08:54:52 AM EST
    You can go to your TL preferences and under comments you can chose ignore ratings under the drop down menu: 'sorting based on comment rating'

    Atheists (5.00 / 1) (#108)
    by almostsanejoe on Thu Mar 27, 2014 at 01:55:34 PM EST
    Torasco v. Watkins, e.g., underlines that you can be an "atheist," that is, someone who does not believe in God, and have a "religion," so I don't not think that is a great example on Stevens' part. An atheist can have a RFRA claim.

    I do think U.S. v. Lee is damning to the Hobby Lobby side. The facts are much like this one. And, it is from the pre-Oregon v. Smith days. It is what RFRA is supposed to be "restoring" here.

    Also, the concern cited Stevens in his concurrence there was ALSO cited by Scalia in his Oregon v. Smith opinion. So, Scalia = if intellectually honest = should still be concerned about the issue, even if RFRA is a statute, not what the Constitution demands.

    (Other bloggers, including Michael Dorf, flagged this issue.) Judges still will have the responsibility not to violate the EC. OTOH, this was an issue that split the liberals, as seen by the breakdown in the Smith opinion itself.

    I edited the post (none / 0) (#6)
    by Big Tent Democrat on Wed Mar 26, 2014 at 10:49:03 AM EST
    to accurately described the holding in Boerne.

    I certainly don't agree with Justice Stevens (none / 0) (#16)
    by Peter G on Wed Mar 26, 2014 at 01:29:55 PM EST
    that any and all accommodation of religious objectors under the Free Exercise Clause inherently violates the Establishment Clause (because it favors religion over non-religion). Frankly, I think that's constitutional nonsense, since the Free Exercise Clause by its very existence privileges religion over non-religion. If you take accommodation of religious exercise out of Free Exercise analysis, all you're left with is a level of protection for religious belief that would be granted by the Free Speech Clause already.

    Much more powerful is the argument that the protection of Free Exercise (whether under the Constitution or the statute) does not extend to actions which directly interfere with others' protected rights.  To the extent that the employees in Lee were not also Amish religious objectors, that principle would directly apply, if (but only if) it is true that an employee is disadvantaged at tax time, or later when receiving benefits, by the employer's failure to contribute its half of the Social Security "employment tax."

    My favorite "fun fact" about Lee, by the way, is that the precise accommodation that Mr. Lee sought and that the Supreme court held, at the government's urging, to be impossible to allow (or else the Social Security system would collapse, they said), was later granted by Congress. This, of course, proved that what the government argued to the Supreme Court in that particular case was simply untrue.  Under RFRA, if enforced according to its terms, this could not happen, because the government's claim of inability to accommodate has to be proven by evidence (see definition of "demonstrates" as used in section 2000bb-1(b)), not merely asserted in court argument.


    Not what he said (5.00 / 1) (#118)
    by almostsanejoe on Thu Mar 27, 2014 at 08:34:56 PM EST
    that any and all accommodation of religious objectors under the Free Exercise Clause inherently violates the Establishment Clause (because it favors religion over non-religion)

    He didn't say that. This is underlined by his concurrence in the unemployment benefits cases. Also, he didn't oppose accommodations of religious objectors in various other cases. His concern is that RFRA singles out religious believers too much. Its breadth beyond various cases where exemptions generally are allowed because of special burdens on religious believers (such as prisoners or school children) is pretty telling.

    Frankly, I think that's constitutional nonsense, since the Free Exercise Clause by its very existence privileges religion over non-religion. If you take accommodation of religious exercise out of Free Exercise analysis, all you're left with is a level of protection for religious belief that would be granted by the Free Speech Clause already.

    Free speech involves speech. Free exercise goes beyond speech to various actions. So the "level of protection" even then isn't the same.

    Stevens to my knowledge did not oppose various cases that gave institutional autonomy to churches which are not present in other areas. The clause also guards against coercion. It requires "free exercise" -- not forced exercise, including for reasons that do not "establish" but perhaps because religious exercise is deemed to lead to good citizenship or something. A general "exemption" means more than that. It also guards against selective targeting of religious exercise specifically. Not "speech," but things like taking communion or whatnot.


    Then what of the Establishment clause? (none / 0) (#17)
    by Big Tent Democrat on Wed Mar 26, 2014 at 01:32:54 PM EST
    What meaning do you ascribe to it?

    Lots of work left for Establshment Clause to do (none / 0) (#24)
    by Peter G on Wed Mar 26, 2014 at 02:05:12 PM EST
    No official church ("Christian nation" etc.).  No govt funding or subsidizing of churches and their religious activities.  No preference in official practices for one religion over another, or of religion generally over non-religion (except as necessary to protect non-believers and other third-party rights).  No official promotion of religion (school prayer, requiring teach of non-science in science classes, etc.). Probably forgot a few.

    Sorry, words left out and thought jumbled (none / 0) (#36)
    by Peter G on Wed Mar 26, 2014 at 02:32:15 PM EST
    " ... or of religion generally over non-religion (except as necessary to protect non-believers and other third-party rights)." should read: "or of religion generally over non-religion (except as necessary to protect free exercise, and even then only while protecting the legitimate rights of non-believers and other third-parties from encroachment)."

    So Establishment (none / 0) (#39)
    by Big Tent Democrat on Wed Mar 26, 2014 at 02:34:45 PM EST
    means "Church of England" stuff to you then, not more?

    I could not disagree with you more.


    If you got that from my comment (none / 0) (#44)
    by Peter G on Wed Mar 26, 2014 at 02:58:46 PM EST
    then I didn't express myself very clearly. My categories cover a lot of territory, to my mind (official invocations, various proclamations, school prayer, religious displays on public property, vouchers designed to provide indirect subsidies to parochial schools, etc., etc.).  None of those have a FreeEx "flipside." What would you say was the scope of the Establishment Clause, then?  And what does the Free Exercise Clause protect that the Free Speech Clause does not? If you'd care to share briefly, that is.

    I'm much closer to Stevens (none / 0) (#46)
    by Big Tent Democrat on Wed Mar 26, 2014 at 03:14:42 PM EST
    than to you.

    I am not seeing the difficulty here (none / 0) (#49)
    by MKS on Wed Mar 26, 2014 at 03:36:11 PM EST
    If you engage in commerce, you play by the rules of the marketplace.

    I guess if you choose to make it simple (none / 0) (#61)
    by Peter G on Wed Mar 26, 2014 at 05:46:26 PM EST
    then it's simple.  I don't agree, though.  Corporations have many constitutional rights, which trump other legal rules.  The New York Times is a business corporation, yet obviously would enjoy First Amendment speech/press rights.  Corporations have Fourth Amendment rights against unreasonable searches or seizures.  They are also "persons" with due process rights.  And double jeopardy rights.  And the right to counsel in a criminal case.  And to be protected from excessive fines under the Eighth Amendment. And on and on.  On the other hand, there are some constitutional rights which have been held not to apply to corporations, such as the right against compulsory self-incrimination. Maybe the free exercise of religion should be one of those, but maybe not.  Not simple, is all I'm saying.

    Here's some more smart ruminating (none / 0) (#121)
    by Peter G on Fri Mar 28, 2014 at 11:43:44 AM EST
    on the Establishment Clause, a coincidentally just released interview with the excellent Circuit Judge (and former Yale Law dean) Guido Calabresi.

    "Woah!" (none / 0) (#88)
    by NYShooter on Thu Mar 27, 2014 at 12:28:19 AM EST
    "No govt funding or subsidizing of churches and their religious activities."

    I've listened to numerous debates regarding this issue, and, always came away dissatisfied.

    Questions raised such as, "why isn't tax-exempt status for churches "gov't funding?" And, in that same vein, "why should atheists, or, other non-religious folks be compelled to pay more than their fair share in order to make up the shortfall in the cost of gov't services that churches consume, but don't pay for?"

    Some of the more memorable debates I've heard were staffed by highly educated & informed experts. Each side gave powerful, compelling, even some convincing arguments for their position But, in the end, they seemed to this layman to be trying to justify the unjustifiable......kind of like the Bush/Gore decision's attempted justification.

    Is the answer, simply, that the Gov't. believes  the churches do great public good, like charities?  Or, is it just so ingrained from earlier times that no political entity wants to, or, dares to take it on?


    Maybe this?? (5.00 / 1) (#94)
    by jimakaPPJ on Thu Mar 27, 2014 at 09:00:30 AM EST
    "why should atheists, or, other non-religious folks be compelled to pay more than their fair share

    Same reason I pay property taxes used mostly for schools my grandson doesn't use....

    Society has decided that churches benefit the public.


    God I miss Frank Zappa (5.00 / 1) (#96)
    by CaptHowdy on Thu Mar 27, 2014 at 09:04:41 AM EST
    I'll give you a simple formula for straightening out the problems of the United States. First, you tax the churches. You take the tax off of capital gains and the tax off of savings. You decriminalize all drugs and tax them same way as you do alcohol. You decriminalize prostitution. You make gambling legal. That will put the budget back on the road to recovery, and you'll have plenty of tax revenue coming in for all of your social programs, and to run the army.

                                                         - Frank Zappa


    Reynolds v. U.S. (none / 0) (#40)
    by MKS on Wed Mar 26, 2014 at 02:37:07 PM EST
    upholding the banning of polygamy sets the standard.

    Religious preferences do not override laws of general application.....And polygamy was a Mormon religious belief at the time.

    The new laws RFRA and the follow up RLUIPA (Religious Land Use and Institutionalized Persons Act) were meant to create a statutory right for religious expression....given Reynolds and its progeny.

    Marci Hamilton has always believed RLUIPA and I assume RFRA are unconstitutional under an Establishment Clause analysis.

    Fun Fact:  Boerne is a city in central, rural Texas and is pronounced "Bernie."  


    Layman question (none / 0) (#53)
    by CaptHowdy on Wed Mar 26, 2014 at 03:53:29 PM EST
    " Frankly, I think that's constitutional nonsense, since the Free Exercise Clause by its very existence privileges religion over non-religion"

    Here they are.

    "    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...    "

    I don't see now this privileges religion over non religion.  It seems to me to be just a ehphatic about my freedom FROM religion.


    The government cannot prohibit (5.00 / 1) (#67)
    by Peter G on Wed Mar 26, 2014 at 08:18:57 PM EST
    the free "exercise" of religion.  No other sort of belief system has protection for action motivated or impelled by those beliefs ("exercise").  Other kinds of beliefs and expressions (political, artistic, scientific, educational, interpersonal, ethical, whatever) are protected as "speech" (which necessarily protects the thought that precedes and underlies speech as well), but none is protected in its "exercise," by the wording of the First Amendment, other than religion.  That puts religion in a privileged position, by the plain language of the Constitution. Or so it seems to me. I'm not saying I like it that way, or would write it that way if James Madison had asked me. I'm saying that's what I see when I read it. (And yes, the Religion Clauses have a dual nature; at the same time that free exercise is protected, establishment of any religion is prohibited.  Whatever else the Establishment Clause does, I agree that it also necessarily places a limitation on the extent to which free exercise is protected. But it is not reasonable to interpret one part of the Religion Clause(s) so as to negate the other.)

    Thank you (5.00 / 1) (#72)
    by CaptHowdy on Wed Mar 26, 2014 at 08:39:26 PM EST
    So as I understand it the "limitation" you mention is what we are discussing.  Sort of like you freedom of expression ends at the end of my nose.  Or other parts in this case.

    They'll cut the baby in half; (none / 0) (#7)
    by NYShooter on Wed Mar 26, 2014 at 10:50:10 AM EST
    small, closely held companies (Hobby Lobby) will be granted license to discriminate; Target will have to toe the line.

    Size (5.00 / 1) (#119)
    by almostsanejoe on Thu Mar 27, 2014 at 08:39:32 PM EST
    Hobby Lobby is a pretty big company with lots of employees and branches. It is not really that "small." This seems a pretty artificial rule -- can one owner of a bunch of stores with hundreds of employees discriminate?

    Marty Lederman btw finds the Banbridge (sp?) argument rather weak. See his wonderful series of posts on the case at Balkanization.


    Target (none / 0) (#9)
    by jbindc on Wed Mar 26, 2014 at 11:00:03 AM EST
    And companies like it, wouldn't be affected by this at all.  It would be very hard for a large company with many diverse stockholders to have a religious point of view.

    These cases only concern those companies that are closely held (usually by one family).

    So if the Supreme Court rules in favor of these two for-profit entities, the justices are not likely to rule broadly enough to encompass a significant number of employers, said Stephen Bainbridge, a corporate-law professor at the University of California (Los Angeles).

    "The chances that the Supreme Court would rule that firms that are publicly held, large 'Apple-type' corporations, can get ahold of these exemptions are essentially nil," Bainbridge explained.

    "In the most likely scenario in which Hobby Lobby and Conestoga Wood would prevail," he said, "the Court is likely to rule that only firms where essentially the firm is the alter-ego of the shareholders, where there is a small number of shareholders who hold cohesively and unanimously strong religious beliefs that inform how the business is run, only firms like that would be able to get the kind of exemption that Hobby Lobby and Conestoga Wood are seeking here."

    And big business knows it. No Fortune 500 company filed amicus briefs in support of the Hobby Lobby or Conestoga Wood, a clear signal to many health insurance industry watchers that the companies aren't likely to cut birth-control benefits.

    Maybe (none / 0) (#42)
    by MKS on Wed Mar 26, 2014 at 02:47:36 PM EST
    But I doubt very seriously Hobby Lobby would stipulate it is the alter ego of its shareholders....

    They have most likely spent big bucks making sure corporate formalities and capital requirements are adhered to avoid claims that try to pierce the corporate veil and pin personal liability on the shareholders.

    They cannot have it both ways:  If they are the alter ego of the corporation, then kiss limited liability good bye....But they won't of course do that.


    It could be possible (none / 0) (#45)
    by jbindc on Wed Mar 26, 2014 at 03:09:30 PM EST
    Prof. Bainbridge has several posts about Reverse Veil Piercing.

    Yes, he's a conservative law professor, so before you jump all over me, I'm not saying I agree, or that I completely buy his arguments, but he does lay out a thoughtful way the Court could rule in a narrow fashion that allow closely held companies like Hobby Lobby and Conestoga to claim a religious exemption, while leaving large, publicly traded companies out of the equation.  In fact, that's what Roberts may have tipped his hands to indicate that's what he's looking for:

    "...thinking of a narrow ruling allowing closely held companies like Hobby Lobby Stores Inc. to claim a religious exemption, while leaving aside more-complicated ownership structures of publicly traded corporations to another day -- a position that Justice Stephen Breyer indicated he might, or might not, be open to."

    Like I said yesterday, it seems (once again) it's really going to depend on what Kennedy thinks.


    I tried (none / 0) (#50)
    by MKS on Wed Mar 26, 2014 at 03:43:55 PM EST
    the link but couldn't get past the first sentences describing how proxy contests are primarily involving public corporations rather than close corporations....

    If he means by public, those that are publicly traded, he is clearly wrong.  Proxy contests can occur with just a few shareholders....someone goes on vacation in a close corporation and cannot attend a meeting for example.  And the point is that if you have more than one shareholder, you have potentially more than one religious belief.....Shareholder disputes can and do occur in corporations with just a few shareholders....

    I'd give them their reverse veil piercing....but of course, then the veil should be pierced for all purposes including liability.


    I gave you the link to the front page (none / 0) (#52)
    by jbindc on Wed Mar 26, 2014 at 03:50:36 PM EST
    Where he has lots of posts, so I can see where it might be confusing.

    Here's a more condensed one.

    As mentioned in my opening post, I think a key issue in the contraception mandate cases is whether form should trump substance. If Hobby Lobby were David Green's sole proprietorship, there is no question but that he would be able to assert his RFRA and First Amendment claims. Should that change simply because he incorporated his business?

    Unfortunately, whether they have allowed incorporated employers to raise such claims or not, courts have failed to articulate a coherent doctrinal justification for their holdings.

    In my article, Using Reverse Veil Piercing to Vindicate the Free Exercise Rights of Incorporated Employers, 16 Green Bag 2d 235 (2013), I proposed that courts should use reverse veil piercing to provide a more coherent doctrinal framework.

    Reverse veil piercing (RVP) is a corporate law doctrine pursuant to which a court disregards the corporation's separate legal personality, allowing the shareholder to claim benefits otherwise available only to individuals. The thesis of this article is that RVP provides the correct analytical framework for vindicating certain constitutional rights.

    It goes on, but then his subsequent posts make a little more sense since he wrote them as additional thoughts.


    In my view (none / 0) (#54)
    by Big Tent Democrat on Wed Mar 26, 2014 at 03:54:33 PM EST
    of course it should change if he incorporates.

    This is one of the balances that the choice of incorporation requires.

    I'm not sure why that concept is so difficult.

    To be clear, I would deny his claim is if he were not incorporated, but on the merits.

    As long as he is incorporated, he does not have standing.

    The SCOTUS will certainly disagree with me on this, but they will be wrong imo.


    I agree (none / 0) (#55)
    by jbindc on Wed Mar 26, 2014 at 03:58:24 PM EST
    I just thought his posts were instructive.

    No, I understand (none / 0) (#105)
    by MKS on Thu Mar 27, 2014 at 11:23:50 AM EST
    what he is saying.....I stopped reading because the idea was ridiculous.

    "RVP" as he calls it is a goofy theory.   It runs contrary to the entire idea behind a corporation--which is to provide a separation between the shareholders and the corporation.  If you want to be treated as a sole proprietorship, then do not incorporate.   If you want to pierce the corporate veil, then you should give up having the corporate entity shield your personal assets.....

    This guys has no idea about the real world of shareholder litigation....saying proxy fights only occur within big public corporations.....Nonsense....Fights over control happen in small and closely held corps all the time....


    Shrug (none / 0) (#107)
    by jbindc on Thu Mar 27, 2014 at 12:21:37 PM EST
    You may not like his politics, or his theory, but he is an expert in corporate governance, so I think he probably knows what he's talking about.

    That is just nuts (none / 0) (#41)
    by MKS on Wed Mar 26, 2014 at 02:43:45 PM EST
    The law makes a big deal out of the difference between shareholders and the corporation.

    A shareholder has no standing to assert rights that belong to the corporation....except for derivative lawsuits, but even those are the assertion of corporate, as opposed to shareholder, rights by proxy.

    When Hobby Lobby incorporated it became a new entity, totally different from the shareholders....

    Close corporation or not it is still a corporation....If people want to assert their private rights, then stay private....do not incorporate.