The Supremes

[cellio]

Dear SCOTUS,

Let me see if I have this right: A corporation that has a small number of shareholders, like a family, is a "person", and a corporate "person" can reject at least one legally-required expenditures it objects to on religious or moral grounds, and thus Hobby Lobby doesn't have to follow Obamacare's requirement to fund contraception. Got it.

A corporation, while maybe a "person", is clearly no more of a "person" than an actual, real live person, like me. There are legally-required expenditures that apply to me that I object to on religious or moral grounds too. So, dear SCOTUS, could you please clarify which of those I can opt out of? If Obamacare or contraception is somehow unique, please specify how. If you say that I can't opt out, why not? Surely you're not saying that, for example, Hobby Lobby has more rights as a person than I do?

(Quite aside from how you feel about any particular law, while it's a law it should apply equally -- or there should be a clear reason that cases aren't equivalent.)

Comments

[dsrtao]

Not only that, but "closely held corporations" is not a small set. I've seen estimates that they represent 90% of the number of corporations overall and 50+% of private sector employment.

It appears that SCOTUS says that courts can determine whether a religious belief is sincerely held, and that seems to me to be the most asinine part of the whole argument.

Nor is there any reason that contraception should be special, except that SCOTUS says that it is.

[goldsquare.livejournal.com]

I haven't read the decision in detail.

BUT: I think that their reasoning is not exactly the same as it is portrayed in the public press.

SCOTUS has already portrayed that First Amendment Rights can apply to corporations - in my opinion largely on the basis of free speech. It also extends wide authority to individuals to express First Amendment Rights.

I, as a person, can use my possessions to express my rights. To what degree is a corporation my possession? In this case, the court narrowly held that a closely-held corporation of 5 or fewer people can treat a corporation as their property for purposes of their religious expression, especially when the corporation was founded to conform to their religious principles.

The court also found that the US Government had a compelling interest in legislating contraceptive coverage under the ACA - but it only found that the government failed to do so in the most narrow way possible.

Since the US Government offered exceptions for non-profits that are religiously based, the court found that there was insufficient difference between that situation and a closely-held for-profit that was founded upon religious principles that match the owners/founders religious beliefs.

As a result, they ordered that the non-profit religious exception for contraception be narrowly extended - their feeling was that the governments goal could be adequately expressed that way.

I'm not saying how I feel about that decision, frankly, because I haven't read the full 100 pages or so completely and deeply. That's just the summary of the majority opinion as I've seen both in direct quotation and in summary by professional attorneys. And, as a practical matter, neither the Executive nor Legislative branches have worked out funding for this new extension of the non-profit exception, so there may be a practical impact.

[eub.livejournal.com]

Since the US Government offered exceptions for non-profits that are religiously based

-- which is the subject of lawsuits arguing that the exception violates the non-profits' religious liberties. If the Court decides in favor of those non-profits, I am quite unclear on how that would not knock the props out from under the current decision.

[goldsquare.livejournal.com]

I believe those suits relate to rather abstruse points, and won't survive challenges. Basically (if I understand the cases correctly) they relate to the fact that by SIGNING a document which says they won't offer contraceptive services, they set into motion means by which those services will still be offered. They don't want to "certify", since the sole path that might be open to them to avoid complicity is to not provide the services but not state whether they do or not.

I suspect that the final decisions will be that honest certification for what you are and are not doing is not a substantial burden because the level of complicity in the result is too far-fetched.

[eub.livejournal.com]

Well, we shall see whether they're tossed 9-0 or what. The majority does seems to be telegraphing its intention to toss them! Which is an interesting thing to do with a still-open case.

[goldsquare.livejournal.com]

I should also mention: the courts specifically DO NOT get terribly into whether a religious belief is sincerely held nor even whether it is doctrinally consistent with the views of their church-of-affiliation.

Notable in this case is that the US did not question whether the belief was sincerely held, so the question was never challenged. If it had been, I suspect it would have been upheld.

There must be SOME evidence that this is a sincerely held belief: I suspect that the founding papers of Hobby Lobby probably contained something that could have been used as evidence.

[eub.livejournal.com]

What is the "this" that is a sincerely held religious belief, though? The religious belief that abortion is a sin, sure, that's a thing. But we are not actually dealing with abortion here according to what a court would determine as fact. It appears that the Hobby Lobby owners are relying on a religious belief whose content is that certain methods of birth control prevent implantation. I would see a real question, not whether that's sincerely held, but whether the belief is religious in nature. I am interested to read the decision to see how the Court navigated this distinction.

(The belief that contraception is a sin, that's certainly a thing too, and the Court also issued several decisions relating to Catholic business owners objecting to contraception in general. But the Hobby Lobby owners were specifically objecting to certain methods, while okaying others, so they're not in a position to lean on that belief.

And not saying this is legally material in itself but I find it fairly remarkable: the "mini-Pill" is okay, "Plan B" is not; both are levonorgestrel, though the doses and product labeling differ. My recollection, actually, is that the sources that suggested that either would prevent implantation would suggest it of both of them. If one is to sail past factual questions in a religious belief, is it now a religious belief that Plan B can prevent implantation and hormonal contraception can't?)

[goldsquare.livejournal.com]

We can debate what the thisness of this is, but in actual practice, the owners of Hobby Lobby claim a sincerely held religious belief, and no one is questioning their belief (within the legal system: LJ, who knows?)

I can't debate their beliefs for them, and do not wish to. Smart, stupid, vapid: who knows?

[eub.livejournal.com]

*Did* they, in actual fact, claim a religious belief with content about the behavior of zygote implantation? Or did the court in essence decide that arbitrary non-religious belief co-occurring with religious belief is treated as religious for this purpose? I have not read enough of the decision to know; have you by any chance?

[goldsquare.livejournal.com]

Press reports suggest that the owners testified to their shared beliefs for the record, but again, were not challenged on whether those beliefs were sincere.

[eub.livejournal.com]

the courts specifically DO NOT get terribly into whether a religious belief is sincerely held

They also would rather not judge the legitimacy of religious practices themselves, but in practice that's what they do, to avoid turning the RFRA into a complete anything-goes card. De facto it matters whether your religion and its sacramental practice is sufficiently accepted (e.g. practiced by five or more members of the bench), and this is why Rastafarians don't get to smoke ganja. (Although, Santo Daime members do get to use DMT, so it's not that it's "mainstream only".) This all somewhat tangential, perhaps, but frankly I think it does have some bearing on how they'd treat Catholicism versus Christian Science, for one hypothetical people have raised.

[goldsquare.livejournal.com]

Is been a long time since I read about the cases involving Rastamen but I don't recall religious legitimacy being key to the decision. As I recall it was more closely related to the perception that the government was actually using the least restrictive means to control drug enforcement.

I have opinions about this case and that one but I'm trying to keep me out of it.


I

[browngirl.livejournal.com]

Well said.

I'm still in shock. I don't know why I'm shocked but I am.

[sethg]

The swing Justice on the Supreme Court is squicky about both abortion and homophobia.

I suppose we can be thankful for small favors.

[sethg]

The Supreme Court used to interpret the First Amendment to require that if a generally-applicable law impinged upon a religious practice, it was subject to strict scrutiny (much like laws that impinge on free speech or laws that smack of racial discrimination). The classic cases for this line of reasoning are Sherbert v. Verner and Wisconsin v. Yoder.

Then, in Employment Division v. Smith, the Court (in a decision written by Justice Scalia, of all people) decided that applying this level of scrutiny to free-exercise-of-religion cases was not proper, and backed away from that whole line of cases.

Then Congress said “actually, we like the standard that used to apply”, and passed the Religious Freedom Restoration Act (RFRA), which ordered the courts to interpret Federal law according to the old standard.

Then came Obamacare, and Hobby Lobby. The Hobby Lobby decision hinges on an interpretation of the RFRA, not an interpretation of the Constitution. (A boneheaded interpretation, IMHO, but at least Congress can amend the RFRA.)

Anyway, all that context is necessary for me to answer your question: even under the old constitutional standard, the courts have held that you can’t refuse to pay taxes due to religious objection. Adams v. Commissioner of Internal Revenue, a Third Circuit case, has a bunch of citations.

See also Tony and Susan Alamo v. Secretary of Labor: if a church raises money through commercial activity, the workers employed in that activity are covered by the Fair Labor Standards Act, even if they consider themselves to be volunteers and consider their work to be a kind of spiritual service.

PS: The Citizens United case makes it clear that as far as the current Court is concerned, a corporation is a person with constitutional rights (or, to be more precise: it exercises constitutional rights on behalf of its owners) regardless of how many shareholders it has. I strongly suspect that if a non-closely-held corporation underwent a religious conversion, so to speak, the Court would grant it the same deference.

PPS: IANAL.

[mbarr.livejournal.com]

Not that I like the decision, but I did read it, and the dissent.

1. this was not a first amendment case. It was decided in RFRA.
2. Yes, you can be expect from some laws. Like smoking peyote. Or not paying social security taxes if Amish, and have only Amish employees that choose to not have you pay it. And it's because of RFRA.

RFRA exists because of the peyote SCOTUS case.

So, as much as I would prefer the reading offend law according to the dissent... Most of the comments are unfortunatly in accurate :(

Huh?

[thnidu.livejournal.com]

So, as much as I would prefer the reading offend law according to the dissent

This doesn't make any sense. I don't mean it's a pointless opinion, I mean I don't even know what your opinion is. This sentence (well, OK, it's a clause) doesn't make sense. Please clarify, or fix your typos, or whatever. TIA.

Re: Huh?

[mbarr.livejournal.com]

Can't fix it, because it's been replied to.

Should have read:

So, as much as I would prefer the reading of the law according to the dissent..

Re: Huh?

[thnidu.livejournal.com]

Ahh, thanks.

[grouchyoldcoot.livejournal.com]

So suppose the board of directors passes an explicit resolution that the corporation has converted to Christian Science. And suppose they propose to offer a health plan in which the corporation will provide people to pray for you if you get sick. Forcing them to pay regular ACA costs is surely not the minimally invasive solution, because a great many people were covered under an expansion of Medicaid- why not extend it a little more? I'm sorry; I just can't find any substantive boundaries to this decision.

[goldsquare.livejournal.com]

The decision specifically said it could not be extended like that.

[grouchyoldcoot.livejournal.com]

How so? Can you point me to the element of the decision that forbids it? I'm sorry; I've been lazy and have only read summaries.

[goldsquare.livejournal.com]

The decision can be found here (http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf).

"This decision concerns only the contraceptive mandate and
should not be understood to hold that all insurance-coverage mandates, e.g.,
for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice."

[grouchyoldcoot.livejournal.com]

It seems to me that "should not be understood that... must necessarily fall" does not preclude the possibility that they *may* fall. That's going to take further Supreme Court cases to settle, and will certainly invite litigation. Certainly they've given carte blanche to corporations to not provide contraceptives, and there is a financial incentive to do so. "Sincerely held belief" will obviously have to be litigated. What non-slippery definition can there be short of recognizing an official corporate declaration of belief?

But the really big question for me is, doesn't this pierce the corporate veil? Owners of corporate stock cannot be held criminally responsible for actions of the corporation because of that veil, right? If a corporation can channel its owner's religion, doesn't it also channel their moral responsibility?

[goldsquare.livejournal.com]

Opinion: a great part of this decision, as I read it, is about the unfairness of withholding the nonprofit exemption from a tightly held religiously founded for profit. I don't read the case as saying "anything goes if you believe". I read it as saying very narrowly that a for profit corporation like this one also qualifies.

The Federal government doesn't have other exceptions in this law.