Nobody could have predicted that 'religious liberty' accommodations would lead to Hobby Lobby

By Big Tent Democrat, Section Civil Liberties
Posted on Thu Jul 03, 2014 at 11:38:46 AM EST
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Due to the entirely predictable turmoil in Iraq, we are now cursed with Iraq Debacle cheerleaders "explaining" how it was all President Obama's fault. In a similar vein of chutzpah, E.J.Dionne has deccided that the Hobby Lobby decision was also President Obama's fault:

It’s unfortunate that the Obama administration’s initial, parsimonious exemption for religious groups helped ignite the firestorm that led to Hobby Lobby. It might consider this lesson as it moves, rightly, to issue an executive order to ban discrimination against LGBT people by government contractors. I’ve long believed that anti-gay behavior is both illiberal and, if I may, un-Christian.

Oh really? It was the Obama Administration's fault that its overly generous "accommodation" in violation of the Establishment Clause that led to Hobby Lobby? It was Obamas fault that his compromise was rejected out of hand by the Manichean forces intent on eliminating women's privacy rights? What a load of crap. Indeed, E.J. Dionne has been full of it from Day 1 on this. In my post, Dionne Breaks Faith With Progressive Values, I predicted that the accommodation Dionne argued for would absolutely lead to Hobby Lobby:

In the wake of the Obama "accommodation," E.J. Dionne writes:

President Obama did today what he should have done at the very beginning: He honored the fact that religious groups, including the Catholic Church, had legitimate religious liberty claims in the battle over a contraception mandate under the new health care law. And he did so while still holding to his commitment to expanding contraception coverage as broadly as possible.

The problem with Dionne's unprogressive formulation is simply this -who gets to decide when a "religious liberty claim" is legitimate? The very exercise of determining "legitimacy" of a "religious liberty claim" is oxymoronic. [...]

Consider this possibility -- what if the Catholic bishops say that since their employment of persons is the means by which persons are eligible for birth control under the Obama accommodation, then they should have the right to prohibit their employees from getting contraception care? How can Dionne distinguish this "religious liberty" claim from the one he is arguing in favor of? There is no logical difference in the positions.

A progressive would understand this and not argue for a "religious liberty claim" that a religion should have "the right to deny even its employees of other faiths the health-care services of which it doesn't approve on strictly doctrinal grounds." Yet this is what Dionne is arguing for. It is a betrayal of progressive values.

Post Post Script - It's no longer a possibility, as the Catholic bishops make the "religious liberty" claim I hypothesized above. No word on whether Dionne thinks the President should "honor the fact that religious groups, including the Catholic Church, had legitimate religious liberty claims in the battle over a contraception mandate under the new health care law" on this as well.

In The progressive fight against the encroachment of religion on our secular laws, I wrote:

The reality is that Dionne compromises on the separation of church and state in an attempt to coopt religion on his side of certain arguments and becomes miffed when the Church does not stop precisely where he wanted it to on the issue of contraception. The sacrifice of principle by Dionne rendered no practical benefit—the very definition of a terrible "compromise."

It was Dionne's strongly urged course of action that led to Hobby Lobby. And the Court made that clear. For it was the "accommodation" made to religiously affiliated secular institutions that the court leaned on to justify its decision that the government had other means to accomplish its goals.

And this was entirely predictable. Indeed, I predicted it. It takes a lot of gall on Dionne's part to claim he has been "proved f*cking right" on this. Because he was utterly and completely f*cking wrong.

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Nobody could have predicted that 'religious liberty' accommodations would lead to Hobby Lobby | 32 comments (32 topical)

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obama's problems (5.00 / 2) (#2)
by Ga6thDem on Thu Jul 03, 2014 at 12:51:44 PM EST

Are not this one. His problem and basically the crux of ALL his problems is disinterest and not understanding legislation and the gop and how they operate. Then you throw in ppus and you have got a mess.

Gays are the next target but who after that. The irony is that if obama had actually listened to single payer advocates and thrown them a bone so to speak he might notbe having these problems

Really, GA (none / 0) (#6)
by jimakaPPJ on Thu Jul 03, 2014 at 04:14:25 PM EST

Gays are the next target....

Do you mind explaining this. Like, what organization... what have the done... etc., etc.


: First post Open Thread. Go. (5.00 / 3) (#9)
by nycstray on Thu Jul 03, 2014 at 05:42:41 PM EST

the roberts' court (the "Fab Five") is (5.00 / 3) (#11)
by cpinva on Thu Jul 03, 2014 at 07:40:06 PM EST

working just as diligently as it can, to wrest the title of "Worst Supreme Court Ever" from the taney court. a big advantage it has, over the taney court, is that there are so many more issues of national significance for it to opine on.

taney had a good run, but I believe a new champion is soon to be crowned.

Other health benefits of iuds (5.00 / 1) (#26)
by kmblue on Sat Jul 05, 2014 at 05:26:16 AM EST

Use of nonhormonal IUDs (plastic and copper) was associated with a decrease in endometrial cancer. The levonorgestrel intrauterine system can treat a variety of gynecological disorders, including menorrhagia and anemia. The levonorgestrel system has also been used successfully as part of hormone replacement therapy, as adjuvant therapy with tamoxifen, and as an alternative to hysterectomy for women with bleeding problems.

http://tinyurl.com/otvysxy

So Hobby Lobby can now deny women treatment for other health problems.

Lovely.

The LGBT action (none / 0) (#1)
by CaptHowdy on Thu Jul 03, 2014 at 12:42:32 PM EST

Is a real decision point. I don't believe given recent gains that Obama will cave.

: Yes, President Obama's (none / 0) (#4)
by KeysDan on Thu Jul 03, 2014 at 01:48:57 PM EST

executive decision relates to discrimination by federal contractors. ENDA has religious exemptions, but its general applicability goes beyond those doing business with the federal government and getting tax-payer money in contracts. The executive order is not yet available, and we can be sure there is much lobbying going on--hobby lobbying style.

Yes, Dionne was not (none / 0) (#3)
by KeysDan on Thu Jul 03, 2014 at 01:20:46 PM EST

only wrong, but instrumental (along with other Catholic men, including Chris Matthews) in billowing the bishops fires. Sort of starting a "controlled" fire and finding their beach toy sprinkling can to be inadequate.

The Court's Hobby Lobby post-script on Tuesday that extends religious rights to closely-held corporations applies broadly to the contraceptive coverage requirement of ACA (not just to the four cited by Hobby Lobby--Ella , Plan B and 2 IUDs) became, as you say, a platform for their decision. That "narrow"decision, for early starters, took Hobby Lobby's ostensible objection to abortion, through contraceptives/abortifacients (the untenable science, aside) to all birth control coverage expected by ACA.

If Dionne wants to find fault in the Alito aftermath, he could start with a refresher column on the Religious Freedom Reformation Act (RFRA) of 1993. And, then, in professional redemption advocate for the president and Democratic Congressional leaders to move for repeal, or at least modification, of RFRA so as to quench the flames yet to come.

It has happened before. Justice Kennedy struck down RFRA, in part, as an unconstitutional use of Congress's enforcement power (City of Boerne v Flores--the archbishop of San Antonio wanted to ignore historic district codes). It continues for federal purposes only.

Hobby Lobby was, of course, an interpretation of a federal statute, the question was do corporations have a religious belief within the meaning of RFRA? And, is "person" to be construed as a corporation. Without that Hobby Lobby would have no protection.

Religious groups have lost no time in sending letters to Congressional leaders pleading not to repeal or modify FRFA, just because of a little disagreement with one particular application of the law. It would, they fear, set a dark precedent by undermining the fundamental principle of religious freedom for all. On the other side, Freedom from Religion Foundation took out a full-page ad in the NYT presenting the need for repeal.

When FRFA was crafted in the wake of the Smith decision regarding Native American religious use of peyote, it passed the House unanimously, the Senate (97-3) and signed into law by President Clinton. The three dissenting senators were Harlan Matthews (R.TN), Robert Byrd (D.WVA) and Jesse Helms (R. NC). I can't believe that I find myself on any side of any issue with the late Helms. But, guess what?

Kennedy has been a pretty reliable (none / 0) (#5)
by CaptHowdy on Thu Jul 03, 2014 at 03:15:34 PM EST

Vote on LGBT issues. If the "religious freedom vs gay rights" issue came before the court Hobby Lobby style it hard to imagine him voting for discrimination.

But who knows.


What this country needs, what the world needs (5.00 / 5) (#7)
by Mr Natural on Thu Jul 03, 2014 at 05:17:22 PM EST

is not freedom of religion, but freedom from religion.


Amen to that (5.00 / 2) (#8)
by CaptHowdy on Thu Jul 03, 2014 at 05:26:01 PM EST

Brother


Justice Ginsberg's (5.00 / 2) (#10)
by KeysDan on Thu Jul 03, 2014 at 06:21:33 PM EST

robust dissent in Hobby Lobby included: .."religious organizations exist to foster the interests of persons subscribing to the same religious faith.. Not so for for-profit organizations."

Thee interests to be fostered include creating and expanding their community of believers...recruitment, proselytizing, evangelism, following the dictates of Paul.

n the case of Hobby Lobby, there is the attempt to use economic power (employer) to imbue the powerless (employees) with their principles of faith.

It seems, to me, to be an affront on several levels, including abuse of power. If the "closely held" corporation refrains from birth control, so, too, should its employees. And, to that end, the employee will not be provided the insurance coverage. Buy, them yourselves, if you must, but it will be out-of-pocket. It is also possible that a work culture of anti-birthcontrol may be established.

Freedom from religion, as suggested, would serve all, including religions. Especially, Court sanctioned religions, the mainstream religions. For example, birth control gets the favorable treatment (e.g. Catholic); blood transfusions, not so much (Seventh Day Adventist), or escape from any health insurance coverage (Christian Science.)


Giving full and proper respect (none / 0) (#12)
by Peter G on Fri Jul 04, 2014 at 10:38:54 AM EST

to The Notorious RBG, you need to spell her last name correctly, that is, Ginsburg.


Yes, (5.00 / 1) (#13)
by KeysDan on Fri Jul 04, 2014 at 10:50:19 AM EST

Thank you. Why, if I was to make a spelling error, couldn't it have been for Aleto?


: It is more common to see (5.00 / 2) (#21)
by Peter G on Fri Jul 04, 2014 at 04:05:13 PM EST

Alioto, I think.

: Another thing (none / 0) (#15)
by CaptHowdy on Fri Jul 04, 2014 at 11:20:48 AM EST

We have in common

So what was Jesse's problem... (none / 0) (#29)
by unitron on Sat Jul 05, 2014 at 02:56:13 PM EST

...with the RFRA, and was it the same as yours?


: Well, Jesse Helms is (5.00 / 1) (#31)
by KeysDan on Sun Jul 06, 2014 at 01:27:40 PM EST

not available to help me on a response, which has the disadvantage of not getting the scoop directly from the horse's mouth, but the advantage of creating a hypothesis without suffering his words.
So here goes: the RFRA act stems from the Supreme Court decision in Employment Division (state of Oregon) v Smith, in which the Court ruled that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote even if it was used as a part of a Native American religious tradition.
Alfred Smith and colleague were counselors at a drug rehabilitation center when they were fired after mescaline (an indicator of peyote) was detected upon testing. And, Smith was denied unemployment compensation in accord with policies for "misdeeds."
The Supreme Court actually got two bits out of this apple, siding with the state of Oregon both times. The RFRA was signed into law as a clarification or correction on certain questions about freedom of religious beliefs. The Court's majority opinion in favor of the state over Smith was written by Justice Scalia--yes that Scalia.
Now, for Helms. A fan of the the relatively recently appointed Scalia and his brand of jurisprudence, Helms probably saw the Smith decision as being correct, and the legislation a mismatch between an unnecessary religious freedom statute and anything to do with sanctioning drugs such as peyote, as well as the rightness of denying unemployment insurance.
As for Senator Robert Byrd, my guess, that as a senator who carried the Constitution in his pocket at all times, he questioned the constitutionality and need for the statute. And, of course, he was proved correct, at least in part, when Justice Kennedy later struck down RFRA as an unconstitutional use of of Congress's enforcement power. However, it continues when federal funding cases need to accommodate religious freedom. Don't know anything about the gentleman from Tennessee.
As for me, my objections to the RFRA reside with the manner in which it has been interpreted in Hobby Lobby and what that portends for the future. Alito et al. have taken RFRA from a reasonable, at the time, but largely unnecessary clarification of Constitutional protections for individuals and religious groups to the grotesque interpretation that corporations are covered, albeit, at this point, one organized as "closely held."
And, the religious beliefs worthy of freedom under RFRA run the risk of selectivity:-- more freedom for mainstream and less for others. If, again, as an hypothesis, Smith were fired and denied employment benefits for the misdeed of an illegal protest of birth control, would Scalia have ruled the same way?

Don't Believe the Hype! (none / 0) (#14)
by Robot Porter on Fri Jul 04, 2014 at 11:12:06 AM EST

There are a lot of lies being tossed around about this decision.

No woman will lose coverage for contraception, or have to pay out of pocket, because of this decision.

This is expressly stated in the decision:

The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.

Zero effect. Nada. Zilch.

(Also the decision cannot be applied to other types of medical coverage. That's also expressly stated.)

But you wouldn't know this from all the lies and fear-mongering out there.

So why is this happening? Two reasons:

1) The lies are great for fundraising and vote-getting. And link bait!

and;

2) Pols' buddies in the insurance companies want a rule change. Right now they'd bear the burden. They'd like to shift that to the Federal Government.

So don't believe the hype on decisions like this. Actually read them.

There are reasons to be against this decision. Valid ones. But they're not the ones promulgated by the fear-mongers.

Who is going to pay? (5.00 / 5) (#23)
by Anne on Fri Jul 04, 2014 at 04:54:53 PM EST

With there already being an objection to anything that remotely seems like it facilitates access to something to which these religious company owners object, do you have any confidence there will not also be an objection to the government paying for it?

No tax dollars for abortion, so...you think there will be tax dollars for birth control the religious deem as abortifacients - even though the medical community does not classify them as such?

I think it is extremely short-sighted to believe that the Court's ruling has not opened the door a little wider to making it much more difficult for women to obtain all forms of birth control.

Let me just say this, and maybe it will mean something to you and maybe it won't. Do you have any idea how long and how hard women have fought to be able to have dominion over their own bodies, and on how many fronts we've been fighting the forces that want to deny that to us? Do you have any idea how maddening and frustrating it is to see that dominion gradually slipping away, all the while being patted on the head an condescended to as if it's not really that important that we be able to maintain what should be a basic right?

I don't think you are paying attention. I don't think you have looked at this from a big-picture standpoint. I don't think you understand that in spite of the Court calling this a narrow ruling, the cases are being lined up to broaden it. That the Court has already broadened it.

This isn't fear-mongering, it's reality.


: Agreed. If the least (none / 0) (#24)
by KeysDan on Fri Jul 04, 2014 at 09:40:15 PM EST

restrictive criterion involves the suggestion of the Court to reach outside the federal statute or to change it to obtain alternate means for coverage or governmental payment for birth control, in the Hobby Lobby case, an unrealistic bar is presented. The ACA has been subject to over 50 votes by House Republicans to de-fund or otherwise cripple, or repeal the Act. It would be easier to repeal the RFRA, or modify it, for not only reasonable implementation of ACA, but also, for fairness in religious accommodation.

First of all, that accomodation (none / 0) (#16)
by caseyOR on Fri Jul 04, 2014 at 11:47:43 AM EST

of which you speak is not available for for-profit companies. It was created in an unsuccessful attempt to appease religious organizations, especially the Catholic church.

Sure, the administration could amend that to include private corporation, but that would not stop the madness. Just yesterday the Supreme Court's rightwing contingent agreed with a religious organization, Wheaton College, that merely filling out the HHS form to take advantage of this accommodation to which you refer was an undue burden on Wheaton.


The decision instructs them to do (none / 0) (#17)
by Robot Porter on Fri Jul 04, 2014 at 12:39:19 PM EST

just that, in fact, their argument hinges upon it:

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.

People really do have to read these things, rather than depending on the money-grubbing fear-mongers "analysis".


I did read it. And, while the ruling (none / 0) (#18)
by caseyOR on Fri Jul 04, 2014 at 12:45:04 PM EST

does suggest that this accommodation be made available to for-profit companies, it is only a suggestion. Nothing in the ruling compels the administration to extend this to for-profit companies. And the administration has already said they will not be extending this beyond the religious organizations for which it was created.


They cannot compel ... (none / 0) (#20)
by Robot Porter on Fri Jul 04, 2014 at 01:03:39 PM EST

executive branch.

But they can instruct and suggest. And that paragraph makes it clear that from the majority's view once that objection is removed (and it's easily removed) the current situation is unlawful.

It's also clear that many people all over TV and the blogosphere have been lying about this.

If these people really cared about women, they would have been shouting from the rooftops for years about the millions of women who aren't entitled to contraceptive coverage under ACA as it currently stands. And they haven't been doing that.

No women will lose coverage because of this decision. But millions could gain it if they changed key provisions in ACA. And current crowd of fear-mongers silence has been deafening on that issue.

Therefore, one can easily see the current lie-filled fear-mongering is not about women. It's about political fundraising and insurance companies.

Two things pols really care about!


: The insurance companies... (none / 0) (#25)
by unitron on Sat Jul 05, 2014 at 03:36:07 AM EST

...don't mind paying for the various contraceptive methods because either they're being used to prevent unwanted pregnancies, which would mean the insurance company would spend a lot more covering the 9 months of pre-natal and the delivery, or they're being used for other perfectly valid "lady parts" medical reasons, which means cheaper than not treating those reasons that way and the insurance companies having to pay more to deal with those problems after they get worse.
Insurance companies are very good at doing the math and finding the cheapest way out overall.

It's already started (none / 0) (#28)
by jbindc on Sat Jul 05, 2014 at 10:09:46 AM EST

The Court gets to decide, natch (none / 0) (#19)
by citizenjeff on Fri Jul 04, 2014 at 12:58:02 PM EST

The determination is based on whether or not the claimed religious belief is judged to be sincere, not whether or not it is legitimate.

The other criteria for granting/denying a religious exemption are: 1) Is there a compelling governmental interest?, and 2) Is it the least restrictive means that'd be effective?

The Court did a good job of balancing competing considerations. Women can get any contraception covered by the ACA at no extra cost, and employers who sincerely object on religious grounds don't have to be involved. Why the hysterical reaction?

What's your beef, Tent? Why the need to quibble over semantics with E. J. Dionne?

Hobby Lobby pierces corporate veil (none / 0) (#22)
by CaptHowdy on Fri Jul 04, 2014 at 04:43:27 PM EST

Curious what the legal eagles think of this

Mother Jones

Here's one more reason to worry about the Supreme Court's Hobby Lobby decision, which allowed the arts and crafts chain to block insurance coverage of contraception for female employees because of the owners' religious objections: It could screw up corporate law.
This gets complicated, but bear with us. Basically, what you need to know is that if you and some friends start a company that makes a lot of money, you'll be rich, but if it incurs a lot of debt and fails, you won't be left to pay its bills. The Supreme Court affirmed this arrangement in a 2001 case, Cedric Kushner Promotions vs. Don King:
linguistically speaking, the employee and the corporation are different "persons," even where the employee is the corporation's sole owner. After all, incorporation's basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.
That separation is what legal and business scholars call the "corporate veil," and it's fundamental to the entire operation. Now, thanks to the Hobby Lobby case, it's in question. By letting Hobby Lobby's owners assert their personal religious rights over an entire corporation, the Supreme Court has poked a major hole in the veil. In other words, if a company is not truly separate from its owners, the owners could be made responsible for its debts and other burdens.

: Corporations Are People Too (none / 0) (#30)
by squeaky on Sat Jul 05, 2014 at 04:00:15 PM EST

And people have the right or freedom of religion.
So it does not mean that the corporation and the shareholders have the same religion, in fact corporations usually have a different religion than their shareholders. That is because we have freedom of religion in this country.
It just so happens that the person who is the corporation and the shareholders of Hobby Lobby have the same religion.
Veil sewed back up again.

Hypocrosy (none / 0) (#27)
by kmblue on Sat Jul 05, 2014 at 05:32:56 AM EST

The religion the owners of HL practice, if they follow it faithfully and fully, means they can't argue they have an out on parts of it. They have to be consistent .

That means:

They shouldn't allow their counsel to argue before the Supreme Court HL is worried about profits should they have to obey the law. That means they place profit over their religious beliefs.

They shouldn't offer investment choices to their employees that violate their religious beliefs.

They shouldn't buy products made in China because China persecutes Christians. That means they place profit over their religious beliefs.

They should deny treatment to unmarried employees who fornicate and catch a STD.

HL is closed on Sundays because of the owners' religious beliefs.
They should not require their employees to work on Sundays during the Christmas season. They restock shelves, as Green says in his own book.
Again, profits over religion.

They shouldn't care giving up their health plan gives them a disadvantage against other employers. They do. Profits over religion.

Their religious beliefs have to be followed across the board, or they can't claim religious exemption at all.

And.... (none / 0) (#32)
by jbindc on Tue Jul 08, 2014 at 07:40:59 AM EST

More.

Gitmo Detainees Cite Hobby Lobby in New Court Filing.