The real fight over the Hobby Lobby case

posted at 9:01 am on November 29, 2013 by Jazz Shaw

Now that the Supreme Court has agreed to take on the Hobby Lobby case (though they may still duck out of the biggest questions) it seems as if interested parties on both sides are rushing to define what it all means before the first word of the eventual decision is written. As with many such high profile cases, this really has very little to do with the published corporate policies of one particular employer and what will show up in their workers’ benefits handbook next year. This is a case which, if a full, unambiguous decision is rendered, will be dredged up as precedent for years to come in cases across the nation. But we can’t seem to agree on what it is that’s being decided.

For a very liberal reading of the “deeper meaning” of it all, the New York Times helpfully provides the opinion of Linda Greenhouse. As you might guess, I think this misses the point by about as large a margin as one could imagine.

The religious-based challenges that have flooded the federal courts from coast to coast – more than 70 of them, of which the Supreme Court agreed on Tuesday to hear two – aren’t about the day-in, day-out stuff of jurisprudence under the First Amendment’s Free Exercise Clause: Sabbath observance, employment rights, tax exemptions. They are about sex.

As such, the cases open a new front in an old war. I don’t mean the overblown “war on religion” that some Catholic leaders have accused the Obama administration of waging. Nor do I mean the “war on women” that was such an effective charge last year against a bevy of egregiously foot-in-mouth Republican politicians.

I mean that this is the culture war redux – a war not on religion or on women but on modernity.

All culture wars are that, of course: the old culture in a goal-line stance against a new way of organizing society, a new culture struggling to be born. Usually, that’s pretty obvious. This time, somehow, it seems less so, maybe because the battle is being fought in the complex language of law, namely a 20-year-old law called the Religious Freedom Restoration Act.

In her essay, Greenhouse seeks to quickly poo poo the idea that this is part of some grand War on Women or War on Religion, and then goes on to proclaim it to be exactly that, only in different words. But all of this seems to miss the mark.

Ed normally tackles the religious liberties side of these cases here, but the Hobby Lobby question seems to go much deeper than that. While it’s become somewhat toxic to keep invoking the Citizens United decision, one part of this case really does go back to the question of whether or not corporations are “people.” My consistent answer to that question is to say poppycock. A corporation is a stack of legal documents, buildings, property and equipment. But it’s equally true that the leadership of a corporation is most assuredly comprised of people (or one person in the case of some small businesses) who must make decisions and then live with the results, both in terms of the fortunes of their company and the peace of their souls.

Should the government be able to force a business owner to conduct their affairs in a way which doesn’t comport with their beliefs – religious or otherwise – with the only other option being to not engage in business? There may be exceptions to the rule, particularly when it comes to minimum safety standards, but it would seem that the default answer would be no. This is particularly true when we’re discussing offering a “benefit” to employees which is readily obtainable elsewhere.

But this leads us to what I think should be the real debate at the heart of this case. The question I would like to hear the SCOTUS justices ask the participants in this case is as follows: “Do you believe that the government has the power to tell employers how many days of paid vacation they have to offer their employees?

Employers offer a collection of things to prospective applicants for job openings which the HR department collectively refers to as a compensation package. This goes far beyond the wages offered, covering items such as vacation, sick time, casual Fridays, employer contributions to 401K plans and, yes, health care options. Different companies offer different packages, and as you would expect, those who offer the best collection of benefits will attract the most and the best applicants. The employer must balance the costs of all this against their bottom line.

Conversely, an employer who offers virtually nothing but the bare minimum wage will attract only those who can’t find a position anywhere else. They may show up for work most of the time, but they will hardly be motivated to excel and further the company’s goals, generally keeping an eye on the clock and the door, hoping for a chance to bolt to a better situation. Such a company is unlikely to do well. It’s the invisible hand of the market at work yet again. So the real question I’m asking is not if the employer has the religious freedom to single out certain items of health care which they will or will not offer, but rather if they have the freedom to decide which – if any – benefits they offer the employee of any kind and to live with the consequences of those decisions. If the Hobby Lobby case actually settles anything, I’d hope it would be that question rather than the religious liberty debate which dominates the headlines.


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Control. That’s it in a nutshell. The government having the ability to control what they deem to be good for the individual reagrdless of what freedom’s they trample on.

dddave on November 29, 2013 at 9:08 AM

The Internal Revenue Code explicitly states that a corporation, for the purposes of the code, is a person. Period.

HiJack on November 29, 2013 at 9:15 AM

The question I would like to hear the SCOTUS justices ask the participants in this case is as follows: “Do you believe that the government has the power to tell employers how many days of paid vacation they have to offer their employees?”

Better yet, “Do you believe the Shaker community should have been forced to offer its members birth control and pre-natal care?”

The Shakers no longer exist, do in large part because they practiced celibacy. By all members. Not monogamy, but celibacy. I think that’s nuts, but if that’s what they wanted, who am I to force them otherwise.

rbj on November 29, 2013 at 9:19 AM

This is a continuation of the fight in Hosanna-Tabor, which Obma lost 9-0. It is about the role of religion in public life. The administration uses the term “freedom to worship,” instead of “freedom of religion,” because the only liberty they will allow is to conduct services behind close doors in your house of worship on your holy day. Otherwise your life is part of a secular public life in which the government decides how much liberty you have. (Contrary to natural law, where liberty precedes law.)

It is ok for religious people to speak publicly as religious only if their beliefs coincide with the government’s. You rarely hear “separation of church and state” when a religious figure talks about “social justice,” i.e., government programs, or something like opposition to capital punishment or a war.

The government cannot allow competing loyalties from the church or the family (Julia had no family or church, if you recall.) These two institutions have always competed with the state for loyalty, which is why authoritarian regimes have always tried to suppress or co-opt them. It also cannot have criticism from religious believers who speak up and point out the failings of the authoritatrian state, or the loss of liberty to the state.

Wethal on November 29, 2013 at 9:21 AM

the question of whether or not corporations are “people.” My consistent answer to that question is to say poppycock. A corporation is a stack of legal documents, buildings, property and equipment.

Baloney. Documents, buildings, property, and equipment are simply material things that the corporation owns. Would you say that families are not people, but merely houses, baby strollers, couches, cars, etc., simply because families typically own such things?

Corporations are groups of people who come together and organize themselves in a certain way in order to accomplish a purpose (usually to make money). Families are also groups of people who come together and organize themselves in a certain way in order to accomplish a purpose. Both groups are composed of people. It is people who are making the decisions about how the group operates; it is not the buildings, or the baby strollers, that are doing it.

AZCoyote on November 29, 2013 at 9:21 AM

We’re going to see different, but similar, cases come before the Supremes as more cities enact laws determining what the minimum wage must be paid to employees.

I agree with the previous commentor, it’s not about religion, or the war on women, or anything else, it’s about POWER. The progressive (commie) libs crave the power to tell others how to live, how to eat, how to conduct themselves as their goal.

srdem65 on November 29, 2013 at 9:27 AM

Government intrusion in the free market sucks.

crosshugger on November 29, 2013 at 9:32 AM

the question of whether or not corporations are “people.” My consistent answer to that question is to say poppycock. A corporation is a stack of legal documents, buildings, property and equipment.

that is treated as a singular entity to allow lawsuits to proceed against the one entity instead of every employee of the company.
so you are a fan of any lawsuit against a company be comprised of up to thousands of docket items for each case?
they are treated as a single person for legal reasons, and you can’t legislate which rights that person gets to invoke without applying it to all persons.

dmacleo on November 29, 2013 at 9:35 AM

But this leads us to what I think should be the real debate at the heart of this case. The question I would like to hear the SCOTUS justices ask the participants in this case is as follows: “Do you believe that the government has the power to tell employers how many days of paid vacation they have to offer their employees?”

The heart of this case really seems to be the presumed motives of those who wrote this law. If you are intent on a kind of social transformation never before seen in this country, then you have to do two things:

Limit the power of the institutions that stand in your way and alter the normal understanding of the Constitution that stands in your away.

No expansionist socialism can defer to religious sensibilities. “Re-reading” the First Amendment is therefore a must.

Fortunately, Hobby Lobby decided to stand up.

EastofEden on November 29, 2013 at 9:35 AM

While it’s become somewhat toxic to keep invoking the Citizens United decision, one part of this case really does go back to the question of whether or not corporations are “people.” My consistent answer to that question is to say poppycock. A corporation is a stack of legal documents, buildings, property and equipment.

Wrong. Corporations are not “people.” They are “a single, nonhuman person” under the law (this dates back to Roman Law) and all “persons” are afforded equal protections in the 14th Amendment.

BigGator5 on November 29, 2013 at 9:48 AM

Thsi also has implications for business oweners such as florists, photographers, bakers or restaurant owners who do not want to provide services for homosexuals’ weddings, because of religious beliefs. There are a couple of cases in NM, IIRC, and elsewhere.

Wethal on November 29, 2013 at 9:55 AM

Thanks for framing the question that way Jazz. As an HR professional, specifically working in compensation, you stated it in a way that makes it abundantly clear what’s at stake here. To the inevitable response from liberals “Well, that’s vacation and not benefits” I would then follow up with “What’s the difference between them from the perspective of the company?”

What’s interesting is that you’ve had factions of liberalism asking for mandated time off more along the lines of Europe (not saying countries in Europe mandate it, just that they have a lot more time off than US workers). Just wait, if the SC rules the government can force private companies to offer benefits that run against their beliefs, vacation, hours worked, retirement plans, etc. will all get pushed as well.

Of course, with Obamacare forcing companies to drop their current plans and dump everyone into the exchanges anyway this all may be a moot point, but it’ll be interesting to see how it plays out.

Rufus on November 29, 2013 at 9:56 AM

Any business should be free of requirements to support things they have a moral objection to, religious or not.

Count to 10 on November 29, 2013 at 10:01 AM

So the real question I’m asking is not if the employer has the religious freedom to single out certain items of health care which they will or will not offer, but rather if they have the freedom to decide which – if any – benefits they offer the employee of any kind and to live with the consequences of those decisions. If the Hobby Lobby case actually settles anything, I’d hope it would be that question rather than the religious liberty debate which dominates the headlines.

I’d like SCOTUS to use this as an opportunity to address the authority of the federal government, assumed via the ACA, to define minimum required coverage period. Why should I have to buy a plan that covers birth control, drug rehab, maternity, etc rather than buy only the coverage that I want?

Charlemagne on November 29, 2013 at 10:06 AM

one part of this case really does go back to the question of whether or not corporations are “people.” My consistent answer to that question is to say poppycock. A corporation is a stack of legal documents, buildings, property and equipment

NO: Not Poppycock!

Corporations are People for a reason.
A piece of property or a building are not people, they are things.
You may tax a piece of property or building all you want, but there is no way on earth you will ever get one of these ‘things’ to actually Pay the Tax.
The owner of said property or building is who pays the taxes on that ‘thing’, because the ‘thing’ itself cannot pay a tax.
Essentially, only people can pay taxes.

In a Sole Proprietorship, the business is taxed on the owner’s individual income tax return.
In a Partnership, the business is taxed on the Partner’s Individual Income tax returns based on the distribution of the Partner’s level of participation.

When it comes to corporations, the stockholders are the owners. The Stockholders collect their share of the Corporate Profits in the form of Dividends.
Stockholders are taxed on dividends on their individual taxes.
Therefore, to tax a corporation is illegal, unless the corporation becomes a separate person from the owner.
The Reason that the courts grant a corporation personhood is to be able to tax the corporation separate from the owners and not have the taxation be a Double taxation. To deny a corporation personhood is to prevent the government from taxing the corporation as a ‘thing’.

This then carries with it certain privileges of personhood as one of the foundational concepts of the United States is that “Taxation without Representation is Tyranny.”

jaydee_007 on November 29, 2013 at 10:14 AM

Rufus on November 29, 2013 at 9:56 AM

The federal government long ago defined the 40 hour work week so they’ve been meddling for decades.

Charlemagne on November 29, 2013 at 10:14 AM

“Do you believe that the government has the power to tell employers how many days of paid vacation they have to offer their employees?”

I get how you’re trying to frame the debate, but you’re missing the mark. Not because you’ve said anything wrong, but because OF COURSE those on the Obama side of this case believe government should be able to mandate the amount of paid vacation an employee gets.

C’mon. The federal government already mandates the minimum wage an employee must be paid. It mandates how much leave time must be permitted for family and medical reasons. It is now trying to mandate the health insurance benefits that must be offered to employees. Why wouldn’t it mandate how much vacation time an employee gets?

Make no mistake. There is nothing — NOTHING — that the progressives believe should not be regulated, controlled, mandated, or prohibited by the federal government. Not one.

Shump on November 29, 2013 at 10:16 AM

Religion is the observation of holding oneself to account to set of beliefs that have real world practice attached to them. Corporeal individuals may not have that transgressed by mere human law as the observance and practice is to a higher moral authority than any government can ever hope to be. The corporate entity is a voluntary association of individuals under a set of agreements and, as such, may have religion as their basis in practice and observation which includes a moral code and doctrine behind it.

No one is forcing employees to work at a such a concern that has such requirements and performs such practices. Even if you disagree with them and sign up to the corporation, you are not allowed to enforce your belief system upon the others in the voluntary cooperation out of respect for their beliefs. If you want to be employed by a place that offers you services that don’t have such restrictions then go find them, you are not forced to work at a concern that does not share your practices nor your beliefs.

I have my own problem with corporate entities, but they tend to dwell in the realm of duration and lack of finality of them when they allow, abet and encourage criminal activities amongst its members to the benefit of the corporate entity. Three Strikes and you’re out would be a start to ending such abuse, but that is a far different thing than the internal practices that are not criminal in nature and adhere to a known set of moral standards that the company upholds for those voluntarily associating with it.

Where does the government get off telling a corporate or corporeal entity that they must support practices that are considered immoral by their belief system? Those who abjure such practices are not in any way, shape or form utilizing them and if others wish to do so then let them PAY FOR IT based on some other agreements but do not force those who hold a higher standard to paying for something which they consider to be immoral in the extreme.

This doesn’t stop at the corporate level and paying for abortion and contraceptive access is that camel’s nose under the tent sort of deal. What if some fine grandee of a bureaucrat gets through required euthanasia of the old, the sick or the mentally ill? Not just paying for ‘access’ to it, which in and of itself has extreme moral problems attached to it due to the way that bureaucrats are stretching ‘voluntary’ to become involuntary… if government becomes the arbiter of morality, then we have truly lost our way as it is only fit to punish things that are immoral that physically effect individuals and STOP THEM and PUNISH those who commit such acts. When you force individuals to support things they consider immoral, then where can it draw the line on ANY OTHER act? I have seen governments of men, not of law, and I want nothing, whatsoever, to do with them. And that is coming into sharp focus today more so than at any other time in our history.

ajacksonian on November 29, 2013 at 10:18 AM

Re: NY Times ‘Doesn’t Eat, Doesn’t Pray and Doesn’t Love’

Odd, how liberals seek to disabuse any human connection to corporations – except when it comes time to sue corporations; tax corporations; or demand ‘social justice’ from corporations.

Plus, Jazz Shaw brings up an interesting perspective on this issue, but I think he’s overreaching when expecting SCOTUS to view the broader issue of govt. regulation into any type of employee benefit argument VS religious liberty.

IMHO, the Court will demand a narrow scope of debate which will be Freedom of Religion, and whether govt. policy decisions trump Constitutional Rights.

locomotivebreath1901 on November 29, 2013 at 10:22 AM

AZCoyote on November 29, 2013 at 9:21 AM

.
BS – If a corporation ceases to exist, are the people all gone?

News2Use on November 29, 2013 at 10:27 AM

I mean that this is the culture war redux – a war not on religion or on women but on modernity.

You ain’t seen nothin’ yet. Just wait until the Muslims start playing a bigger role here in the US.

Fenris on November 29, 2013 at 10:35 AM

Should the government be able to force a business owner to conduct their affairs in a way which doesn’t comport with their beliefs – religious or otherwise – with the only other option being to not engage in business?

The Obama administration seeks to use the power of the state to define religious practice.

Obama says religious practice is confined to what occurs within the 4 walls of a church on prescribed days of worship.

That is the problemo.

workingclass artist on November 29, 2013 at 10:43 AM

A “corporation” is in its very essence- people. Moreso, it is a “group” of people who have banded together for the purpose of conducting business.

Hobby Lobby is a living, breathing example of this concept. It represents people who have packaged their dreams into a livelihood which in essence helps them live freely, and therefore conduct themselves within their rights as granted by the Constitution. Any attempt to articulate or create arguments to the contrary is not only dishonest, but descends into a contra-intellectual world of diversions, dissembling and fallacy to make any semblance of an argument.

This isn’t a case about an obscure corporate function or rule. It is about the fundamental right of a “corporation” to act in a way that comports with the basic rights and freedoms articulated in our Constitution. It is about the right of the owners to hold certain personal beliefs and the freedom to exercise those religious principles without being forced by the federal government to violate them.

I would ask you this; if a group of people cannot band together and form a corporation under their personal ideals, ideas and matters of conscience- where does the oppression and dictatorship end? What are the limits of the government to force private business owners to act in other ways that are contrary to their beliefs? Are there any?

The aforementioned is the very essence of what our Constitution represents and the detractors realize this. It is why they’ve chosen to carry out this heavy handed despotism under the guise of “corporate law”. That is simply a cloaked subterfuge to steal religious liberties and undermine our God given rights as granted by the Constitution. It won’t end at the “corporation” it is, and will continue to be used against the individual citizen.

Let’s hope that doesn’t work. But given the past inventiveness to create law and undermine our Constitution that is now a hallmark of the Roberts Court and the Chief Justice in-particular- I wouldn’t look for them to be saviors of anything- except their own vanity.

Marcus Traianus on November 29, 2013 at 10:43 AM

I would like to hear the SCOTUS justices ask the participants in this case is as follows: “Do you believe that the government has the power to tell employers how many days of paid vacation they have to offer their employees?”

I do not think that would be a question most Libertarians and Republicans would like to be asked, as I fear for the answer they would get from a majority of people. When I lived in Connecticut, the State ruled every single worker gets a minimum of 5 sick days per year.

Trust me, you don’t want that question to be asked because that will open a huge can of worms for the Libs.

Johnnyreb on November 29, 2013 at 10:43 AM

Why should I have to buy a plan that covers birth control, drug rehab, maternity, etc rather than buy only the coverage that I want?

Charlemagne on November 29, 2013 at 10:06 AM

Tom Harkin explained this. Because some people want them, but can’t afford them, everyone must buy them to lower the cost.

The lefties don’t really believe in private property, including your money. You temporarily possess it untl the state has need of it.

When Clintons were casting around for more money to spend, Hillary wanted to use 401(k)s and IRAs the way the Social Security “trust fund” is used (any excess in the SSTF over payments is taken out and replaced with IOUs). Someone had to explain to the Yale Law School graduate that these were private accounts. Supposedly her response was, “But the money’s just sitting there!”

Wethal on November 29, 2013 at 10:45 AM

Any business should be free of requirements to support things they have a moral objection to, religious or not.

Count to 10 on November 29, 2013 at 10:01 AM

Kosher Deli’s should not be forced to sell Bacon because the Pig lobby wants them to.

workingclass artist on November 29, 2013 at 10:46 AM

When a liberal tells you that corporations don’t have constitutional rights just tell them that Jerry Falwell thanks them because in their world he beats Hustler magazine in court.

Mark1971 on November 29, 2013 at 10:48 AM

Hasn’t the Supreme Court decided to protect the fundamental right of religious liberty in past cases? I don’t see how they can do otherwise.

Paddington on November 29, 2013 at 10:49 AM

When you force individuals to support things they consider immoral, then where can it draw the line on ANY OTHER act? I have seen governments of men, not of law, and I want nothing, whatsoever, to do with them. And that is coming into sharp focus today more so than at any other time in our history.

ajacksonian on November 29, 2013 at 10:18 AM

Part of the problem as well is preferential treatment in applications of the statutes.

This is a common theme with this administration.

workingclass artist on November 29, 2013 at 10:51 AM

Any business should be free of requirements to support things they have a moral objection to, religious or not.

Count to 10 on November 29, 2013 at 10:01 AM

This is a very complex issue, and I agree with the majority of opinions being expressed here, but to play the devil’s advocate, does this mean Starbuck’s should be allowed to help smuggle young people to Canada or elsewhere, if an all out war required the draft to be reinstated?

The line has to be drawn somewhere. I am sure we can rely on the NSA and it’s influence over SCOTUS to draw it fairly

WryTrvllr on November 29, 2013 at 10:53 AM

The legal personhood of businesses is so ingrained in our legal and financial systems, that to reverse this would trash the whole economy. Not that Obama would terribly mined that. Just another crisis to take advantage of to grab more power for the government.

A reversal of the basic doctrine is not going to happen. What may happen is that the nature of the free-will a business owner can exert over the rights of their business might be specified.

bartbeast on November 29, 2013 at 10:56 AM

Any business should be free of requirements to support things they have a moral objection to, religious or not.

Count to 10 on November 29, 2013 at 10:01 AM

This is a very complex issue, and I agree with the majority of opinions being expressed here, but to play the devil’s advocate, does this mean Starbuck’s should be allowed to help smuggle young people to Canada or elsewhere, if an all out war required the draft to be reinstated?

The line has to be drawn somewhere. I am sure we can rely on the NSA and it’s influence over SCOTUS to draw it fairly

WryTrvllr on November 29, 2013 at 10:53 AM

I’m not following.

The issue here is can the State compel a private business and it’s owners to act in direct conflict with their religion.

Can the State compel Kosher deli’s to sell Bacon?

Can the State compel endorsement of abortion without relief/exception?

workingclass artist on November 29, 2013 at 11:01 AM

Can the State compel Jews to stop circumcisions?

workingclass artist on November 29, 2013 at 11:02 AM

So the real question I’m asking is not if the employer has the religious freedom to single out certain items of health care which they will or will not offer, but rather if they have the freedom to decide which – if any – benefits they offer the employee of any kind and to live with the consequences of those decisions.

That is a fairly simple question. The answer is yes. However, Chief Justice Roberts also held that the government can establish mandates and to tax businesses that do not comply. So while the government cannot “force” a business to provide X fringe benefit, it can impose costs on businesses that refuse to comply. That was the entire point of the ObamaCare litigation and why Roberts is officially the biggest tool in modern Court history.

The Hobby Lobby case is really an attack on one of Scalia’s decIsions, Employment Division v. Smith, which held that government has no obligation–under any circumstances–to recognize religious exemptions from laws of general application. That case involved an Indian tribe that used peyote (banned under the CSA) in religious ceremonies and wanted a carve-out from the CSA.

Candidly, I think Hobby Lobby is an important case to protect religious freedom, but it is really irrelevant to ObamaCare.

Outlander on November 29, 2013 at 11:03 AM

The really crazy thing that people keep forgetting is that the only reason employers started offering health care benefits in the first place was to get around another idiotic government intrusion into how companies conducted business. Back during WWII, Roosevelt froze pay rates, so the only way businesses could compete for employees (which were very scarce during the war) was to offer non-cash benefits, like health care.

Thanks, government, for coming full circle.

RoadRunner on November 29, 2013 at 11:05 AM

Can the State compel Jews to stop circumcisions?

workingclass artist on November 29, 2013 at 11:02 AM

Several European coutnries are trying, as well as the city of San Francisco, IIRC.

Wethal on November 29, 2013 at 11:07 AM

You ain’t seen nothin’ yet. Just wait until the Muslims start playing a bigger role here in the US.

Fenris on November 29, 2013 at 10:35 AM

And this raises a further issue with that line being drawn. The constitution, regardless of what the liberals want to believe (and the reason they ignore it at every opportunity) was firmly based on Judeo-Christian ideology.

As the make-up of western civilization changes, as groups, in this case Muslims, whose religion is about submission, grow into new majorities, won’t this line need to be redrawn? If you truly believe in democracy?

Another stellar victory for Liberal Secularism/Feminism.

WryTrvllr on November 29, 2013 at 11:08 AM

This is a continuation of the fight in Hosanna-Tabor, which Obma lost 9-0. It is about the role of religion in public life. The administration uses the term “freedom to worship,” instead of “freedom of religion,” because the only liberty they will allow is to conduct services behind close doors in your house of worship on your holy day. Otherwise your life is part of a secular public life in which the government decides how much liberty you have. (Contrary to natural law, where liberty precedes law.)

Wethal on November 29, 2013 at 9:21 AM

and

Wrong. Corporations are not “people.” They are “a single, nonhuman person” under the law (this dates back to Roman Law) and all “persons” are afforded equal protections in the 14th Amendment.

BigGator5 on November 29, 2013 at 9:48 AM

Yes, agreed.

Let me see if I can remember – and understand to repeat to you – what my hubby was saying about this just yesterday. Full disclosure: he’s an attorney and we’re both devout Catholics. He also despises John Roberts, who, like many others, sees him as a craven mediocre justice who is driven by the political winds (and possibly not a little blackmail from the Obama regime).

The comparison of this case to Citizens United is not accidental. What Obama wants to do is to take away that protection of “a corporation” that has inherent religious freedom, and replace it to apply to one individual, who, as is quoted here, can only be applied to that individual’s worship. Just as the Left was whining about Citizens United and how a corporation as a corporation shouldn’t be able to have freedom of speech to support the candidate of their choice, for example, they are now whining that a corporation as a corporaion shouldn’t have freedom of religion either. The big uncertainty, of course, is Roberts, who can cave as he did with Obamacare or hold the line and uphold the 14th Amendment. The bottom line, once again, is about power — it’s the lens in which everything Obama does should be viewed, no exceptions.

PatriotGal2257 on November 29, 2013 at 11:10 AM

Can the State compel Jews to stop circumcisions?

workingclass artist on November 29, 2013 at 11:02 AM

Several European coutnries are trying, as well as the city of San Francisco, IIRC.

Wethal on November 29, 2013 at 11:07 AM

Yeah I know…Canada too.

Our constitution and it’s protections are unique.

workingclass artist on November 29, 2013 at 11:13 AM

Well, we must presume that whatever 0b00ba had on Roberts that influenced his opinion on this law last year is still in his hip pocket.

Akzed on November 29, 2013 at 11:15 AM

I’m not hopeful the court will find in favor of Hobby Lobby… (Even though I’d like to see them win)

If people can resist basic government functions (like a tax) for religious reasons then they can also do things like be photographed in burkas for drivers licenses…

And because the religious exemption is not allowed for drivers licenses (if I recall the Supreme Court found that way) I don’t think the court will find for Hobby Lobby either.

Skywise on November 29, 2013 at 11:15 AM

The issue here is can the State compel a private business and it’s owners to act in direct conflict with their religion.

Can the State compel Kosher deli’s to sell Bacon?

Can the State compel endorsement of abortion without relief/exception?

workingclass artist on November 29, 2013 at 11:01 AM

My point is that the government HAS to be able to compel people or businesses to act against their beliefs. Religious or otherwise. A business cannot stop paying taxes because the Government is conducting a war and one of the ten commandments is “thou shalt not kill”

The issue is where does the line get drawn.

As I stated, when I said I agree with the majority of views expressed, I think the government has gone too far when it compels a business to provide birth control.

If anything the state has a compelling interest in having people have children. In the same way that it has a compelling interest in preventing suicide.

But as I also stated, I do not believe O’bozo, or liberals, for that matter, gives a rat’s @SS about what is best for this country, and has purposely done many things to hurt the country.

In my opinion Jazz has it completely backwards. If we generalize this into “Does the government have the power to compel” we lose. If we keep it about sex and birth control, we could win, because it shows government overreach. But I don’t expect Roberts and the SCOTUS to produce reasonable decisions. Not since Kelo.

WryTrvllr on November 29, 2013 at 11:24 AM

I’m not hopeful the court will find in favor of Hobby Lobby… (Even though I’d like to see them win)

If people can resist basic government functions (like a tax) for religious reasons then they can also do things like be photographed in burkas for drivers licenses…

And because the religious exemption is not allowed for drivers licenses (if I recall the Supreme Court found that way) I don’t think the court will find for Hobby Lobby either.

Skywise on November 29, 2013 at 11:15 AM

Not necessarily.

Burkas are a custom of particular sects…an interpretation of some things in the Koran.

Some customs are revised periodically within a legal framework of the society….The Koran endorses the custom of slavery but this is not legally practiced in the open in most civilized societies.

Circumcision in Judaism is a principle of doctrine within that faith and is practiced using varied customs within sects.

Another example would be…

Does the State have the authority to compel Catholic Priests to violate the sacrament of marriage by compelling them to perform Gay Marriages?

This is a doctrinal issue within the Church…not a custom or interpretation of doctrine.

Can the State compel Catholic Priests to stop performing Marriages altogether and force Catholics to only be married by the State?

workingclass artist on November 29, 2013 at 11:29 AM

The really crazy thing that people keep forgetting is that the only reason employers started offering health care benefits in the first place was to get around another idiotic government intrusion into how companies conducted business. Back during WWII, Roosevelt froze pay rates, so the only way businesses could compete for employees (which were very scarce during the war) was to offer non-cash benefits, like health care.

Thanks, government, for coming full circle.

RoadRunner on November 29, 2013 at 11:05 AM

Yes. I didn’t learn that myself until several years ago and the thought of it has irritated me ever since.

Think of the freedom that would offer every worker — they could seek jobs at companies that seemed a good fit for their talents and experience without having to worry if or what kind of health benefits they offer. They could buy a health plan on their own, according to what they and their families need.

But … oh, hell … too bad I just woke up from a nice dream.

PatriotGal2257 on November 29, 2013 at 11:30 AM

My point is that the government HAS to be able to compel people or businesses to act against their beliefs. Religious or otherwise. A business cannot stop paying taxes because the Government is conducting a war and one of the ten commandments is “thou shalt not kill”

The Constitution provides for an army and navy. It also provides for taxing authority. To argue on a theoretical basis is to play the enemy’s game.

In my opinion Jazz has it completely backwards. If we generalize this into “Does the government have the power to compel” we lose. If we keep it about sex and birth control, we could win, because it shows government overreach.

This govt is all about overreach. 90% of what it does in unconstitutional overreach.

But I don’t expect Roberts and the SCOTUS to produce reasonable decisions. Not since Kelo. WryTrvllr on November 29, 2013 at 11:24 AM

You may have heard that in June of 2012 SCOTUS ruled 0b00bacare to be constitutional. That was even worse than Kelo, which was execrable. The only way to argue this is on the 1st Amendment, and I have zero confidence that would be successful.

0b00ba still have Roberts by the same short hairs he had him by in June of 2012. I expect he will give them a tug on this matter as well.

Akzed on November 29, 2013 at 11:36 AM

Can the State compel Jews to stop circumcisions?

workingclass artist on November 29, 2013 at 11:02 AM

It could if, say, someone found circumcision was the cause of a 100 fold increase in prostate cancer, but not if the only rationale for the law was to increase sexual pleasure.

We must keep this case about sex and birth control. This battle has to be fought at the margins. We will not win a full on assault.

WryTrvllr on November 29, 2013 at 11:36 AM

The really crazy thing that people keep forgetting is that the only reason employers started offering health care benefits in the first place was to get around another idiotic government intrusion into how companies conducted business. Back during WWII, Roosevelt froze pay rates, so the only way businesses could compete for employees (which were very scarce during the war) was to offer non-cash benefits, like health care.

Thanks, government, for coming full circle.

RoadRunner on November 29, 2013 at 11:05 AM

Yes. I didn’t learn that myself until several years ago and the thought of it has irritated me ever since.

Think of the freedom that would offer every worker — they could seek jobs at companies that seemed a good fit for their talents and experience without having to worry if or what kind of health benefits they offer. They could buy a health plan on their own, according to what they and their families need.

But … oh, hell … too bad I just woke up from a nice dream.

PatriotGal2257 on November 29, 2013 at 11:30 AM

This is the ground we need to be fighting on. As long as businesses accept tax breaks from the state they will face requirements like this. Hobby Lobby is fighting on their ground – I hope they win but wouldn’t bet on it.

kcewa on November 29, 2013 at 11:37 AM

Interesting analysis but unlike vacations days, 401k plans, et al, religious beliefs ARE enshrined in the Constitution. The question as I see is is “does the Constitution still apply in America.”

clippermiami on November 29, 2013 at 11:42 AM

Does anyone know what would happen if the court didn’t find in favor of a business? Would they either have to comply or go out of business?

Paddington on November 29, 2013 at 11:42 AM

Outlander on November 29, 2013 at 11:03 AM

Is it true that the ACA exempts Muslims from the individual mandate, and couldn’t that be the basis for a discrimination lawsuit, since it forces my premiums to be higher?

WryTrvllr on November 29, 2013 at 11:42 AM

My point is that the government HAS to be able to compel people or businesses to act against their beliefs. Religious or otherwise. A business cannot stop paying taxes because the Government is conducting a war and one of the ten commandments is “thou shalt not kill”

The issue is where does the line get drawn.
WryTrvllr on November 29, 2013 at 11:24 AM

I see your point but I think that the State cannot compel Doctrinal Principle.

This is why I use the example of the Kosher Deli being forced to sell Bacon.

That would violate a doctrinal principle within Judaism.

Child Brides and Multiple wives in Islam are not doctrinal but customary depending on the sect and region.

The State compelled the Mormons to abandon their doctrinal principle of multiple wives because this doctrine was a new interpretation in a new religion and the legal statutes in the nation preceded it and if Utah wanted to join the union…they adjusted.

Because of the Mormon adjustment of doctrine…Muslim sects who have multiple wife customs will have to adjust those customs of they want to live here.

Obama seeks to form a precedent through redefinition.

workingclass artist on November 29, 2013 at 11:45 AM

My point is that the government HAS to be able to compel people or businesses to act against their beliefs. Religious or otherwise. A business cannot stop paying taxes because the Government is conducting a war and one of the ten commandments is “thou shalt not kill”

The issue is where does the line get drawn.

WryTrvllr on November 29, 2013 at 11:24 AM

You can make that case in generalities but you seem to forget our civil rights concerning religion. It is a battle worth fighting far more than simply sticking to birth control. Because if it is decided the state can arbitrate which religious tenets are “valid” and which are not then where does it stop but with state-sanctioned religion like they had in Yugoslavia under Tito. You could go to church if you wanted but don’t even think about getting a public sector job and, BTW, somebody would be there taking names. Obama is pissed off that he and his religion are not the only game in town.

Happy Nomad on November 29, 2013 at 11:46 AM

You can make that case in generalities but you seem to forget our civil rights concerning religion. It is a battle worth fighting far more than simply sticking to birth control. Because if it is decided the state can arbitrate which religious tenets are “valid” and which are not then where does it stop but with state-sanctioned religion like they had in Yugoslavia under Tito. You could go to church if you wanted but don’t even think about getting a public sector job and, BTW, somebody would be there taking names. Obama is pissed off that he and his religion are not the only game in town.

Happy Nomad on November 29, 2013 at 11:46 AM

BINGO!

Obama seeks to establish a precedent of establishing a State Secular Religion.

Obamacare is the mechanism he is using.

workingclass artist on November 29, 2013 at 11:49 AM

Akzed on November 29, 2013 at 11:36 AM

I totally agree, but theoretical is all we have, because the constitution has already been changed numerous times to increase central gov’t power. That Army and Navy are paid for, for the most part, with money that has been collected in ways that were originally unconstitutional.

WryTrvllr on November 29, 2013 at 11:53 AM

Does anyone know what would happen if the court didn’t find in favor of a business? Would they either have to comply or go out of business?

Paddington on November 29, 2013 at 11:42 AM

Comply…Pay Penalties…Close Shop.

It’s not the only case coming before the court.

The Church cases argue subsidiarity…and if They win the exemption could be applicable to private businesses as well.

Obama says Catholic Institutions are not exempt because they do not reside within the 4 walls of a church.

Obama is using the specious argument of dictating religious practice as confined to religious worship.

Catholic Institutions function under the principle of subsidiarity and as active Charitable Works within the framework of the Catholic Faith with a precedent going back over 2000 years.

Obama is trying to do what the Chinese government has been doing.

workingclass artist on November 29, 2013 at 11:57 AM

Missing logic and math…and they teach students…

Schadenfreude on November 29, 2013 at 11:59 AM

Does anyone know what would happen if the court didn’t find in favor of a business? Would they either have to comply or go out of business?

Paddington on November 29, 2013 at 11:42 AM

Since Obama requires them to offer those benefits they would have to comply or pay a fine tax of 2000.00 per emplyee

kcewa on November 29, 2013 at 12:00 PM

If the Church loses it’s case…What’s to prevent The State from choosing Clergy?

This is why there is a State sponsored Church in China and it is not recognized by the Pope.

workingclass artist on November 29, 2013 at 12:01 PM

Two Pukes

Just looking at Michelle’s mug is enough to hurl.

Schadenfreude on November 29, 2013 at 12:02 PM

You can make that case in generalities but you seem to forget our civil rights concerning religion. It is a battle worth fighting far more than simply sticking to birth control. Because if it is decided the state can arbitrate which religious tenets are “valid” and which are not then where does it stop but with state-sanctioned religion like they had in Yugoslavia under Tito. You could go to church if you wanted but don’t even think about getting a public sector job and, BTW, somebody would be there taking names. Obama is pissed off that he and his religion are not the only game in town.

Happy Nomad on November 29, 2013 at 11:46 AM

No I absolutely do not forget our civil rights re: religion. But any battle worth fighting is also a battle worth winning. You need to convince 9 people, and I am not one of them. You need to find a winning argument.

WryTrvllr on November 29, 2013 at 12:05 PM

When Roberts ruled on the individual mandate he said that it could be considered a tax instead of a penalty (partially) because it was so low.

But Roberts’s decision limits Congress’s latitude by holding that the small size of the penalty is part of the reason it is, for constitutional purposes, a tax. It is not a “financial punishment” because it is not so steep that it effectively prohibits the choice of paying it. And, Roberts noted, “by statute, it can never be more.”As Lambert says, the penalty for refusing to purchase insurance counts as a tax only if it remains so small as to be largely ineffective.

But the employer mandate IS large enough to be a “financial punishment”. Therefore is it a penalty and unconstitutional according to Roberts?

kcewa on November 29, 2013 at 12:07 PM

Is it true that the ACA exempts Muslims from the individual mandate, and couldn’t that be the basis for a discrimination lawsuit, since it forces my premiums to be higher?

WryTrvllr on November 29, 2013 at 11:42 AM

Good read on the issue…

excerpt:

“The law is vague on this point. Presumably, they will be exempt from the requirement to purchase insurance under the religious exemption. Should this happen, the scenario of American Muslims being exempt from the requirement to purchase insurance, while the great majority of Americans labor under this requirement, will bring “dhimmitude” a big step closer to reality. In addition, what if the PPACA is amended in some way to exempt those who purchase private Takaful health insurance? The health-sharing ministry loophole is one reason, among many, why ObamaCare is unacceptable for Americans and must be removed from H.R. 3590….”

http://www.frontpagemag.com/2011/eric-burns/muslims-exempt-from-obamacare/

workingclass artist on November 29, 2013 at 12:08 PM

Does the State have the authority to compel Catholic Priests to violate the sacrament of marriage by compelling them to perform Gay Marriages?
This is a doctrinal issue within the Church…not a custom or interpretation of doctrine.
Can the State compel Catholic Priests to stop performing Marriages altogether and force Catholics to only be married by the State?
workingclass artist on November 29, 2013 at 11:29 AM

Not the same thing.

Churches are religious organizations and, more importantly, a private group. The state doesn’t need them to recognize marriage nor does the state recognize their marriages. It’s a completely different class of legal entity (for now).

Hobby Lobby is a public business. Now I’d argue its a private concern and people are free to shop or work their of their own free will. Want free condoms with your company provided insurance? Work somewhere else. But the government wrote a law saying X must be provided for health concerns…

Lets take something less inflammatory like vaccines. Can the state compel companies to offer insurance with vaccines or is the company allowed to make a religious exemption?

If YES then the case can be made that religious exemptions trump other areas the state has authority in… Like photo IDs.

We can draft Quakers to fight in wars…
I just don’t think the case is winnable on those grounds.

However… Obamacare already makes exemptions for some religions in the law… Therefore not allowing all religions to be exempted is discriminatory… And a violation of the first amendment… In fact, doing so is an establishment of religion.

Skywise on November 29, 2013 at 12:13 PM

You can make that case in generalities but you seem to forget our civil rights concerning religion. It is a battle worth fighting far more than simply sticking to birth control. Because if it is decided the state can arbitrate which religious tenets are “valid” and which are not then where does it stop but with state-sanctioned religion like they had in Yugoslavia under Tito. You could go to church if you wanted but don’t even think about getting a public sector job and, BTW, somebody would be there taking names. Obama is pissed off that he and his religion are not the only game in town.

Happy Nomad on November 29, 2013 at 11:46 AM
BINGO!

Obama seeks to establish a precedent of establishing a State Secular Religion.

Obamacare is the mechanism he is using.

workingclass artist on November 29, 2013 at 11:49 AM

See U.S. v. Ballard (1944), in which the Court refused to dtermine what was a legitimate religious belief.

Of course, we have traveled a long way on the road to authoritarianism since 1944.

Wethal on November 29, 2013 at 12:21 PM

We can draft Quakers to fight in wars…
I just don’t think the case is winnable on those grounds.

Skywise on November 29, 2013 at 12:13 PM

I think Quakers are generally granted “conscientious objector” status, as are Mennonites (which includes, but is not limited to, the Amish). Some Quakers were willing to serve as medics (who are not armed, IIRC) or ambulance drivers, or do alternative service in government hospitals as orderlies.

However, that the state can compel them to do some alternative service, unless medically unfit, seems to be an established principle.

Wethal on November 29, 2013 at 12:25 PM

Skywise on November 29, 2013 at 12:13 PM

The cases are different but related because Catholic Institutions operate under the principle of subsidiarity and as private businesses.

Can the State compel Catholic Schools to Unionize?

Can the State compel Catholic Hospitals to open abortion clinics within the hospital?

workingclass artist on November 29, 2013 at 12:31 PM

However… Obamacare already makes exemptions for some religions in the law… Therefore not allowing all religions to be exempted is discriminatory… And a violation of the first amendment… In fact, doing so is an establishment of religion.

Skywise on November 29, 2013 at 12:13 PM

Yep.

workingclass artist on November 29, 2013 at 12:33 PM

And what does a J:A:P chick like Linda Grüenhaus, writing for the New Yawk Z I O N I S T Times, know about Christianity and specifically Catholicism? Ø, like her hero, the boychick in the Oval Office, she knows nothing.
In which case, a decent person would just shut up and keep to her own.
~(Ä)~

Karl Magnus on November 29, 2013 at 12:37 PM

Can the State compel Catholic Hospitals to open abortion clinics within the hospital?

workingclass artist on November 29, 2013 at 12:31 PM

They’re going to try up here left-most corner:

Washington: Catholic Hospitals May be Required to Perform Abortions

kcewa on November 29, 2013 at 12:42 PM

Citizens United, corporations as people, etc, doesn’t mean a thing. The First Amendment makes no distinctions between individuals, groups, companies, etc, it says Congress shall pass no law restricting the practice of religion. The rules written by HHS clearly violate the 1st.

BTW, a Hobby Lobby win will not do anything to the ACA as law. It did not mandate contraception coverage.

William Teach on November 29, 2013 at 12:42 PM

Lets take something less inflammatory like vaccines. Can the state compel companies to offer insurance with vaccines or is the company allowed to make a religious exemption?

Skywise on November 29, 2013 at 12:13 PM

good point…but vaccines are not necessarily less inflammatory.

workingclass artist on November 29, 2013 at 12:43 PM

workingclass artist on November 29, 2013 at 12:43 PM

True… Okay – that the states can compel them to offer insurance at all then! :)

Skywise on November 29, 2013 at 12:47 PM

and as you would expect, those who offer the best collection of benefits will attract the most and the best applicants.

My proof against this statement; government workers.

It is complete. Case closed.

jukin3 on November 29, 2013 at 12:52 PM

The question is simple: does freedom of religion belong to the people, or just non-profit organizations? A similar question was at stake in Heller – does the second amendment belong to the people, or to the state governments? The questions are quite stupid and answer themselves, which is why the statists try to obfuscate.

besser tot als rot on November 29, 2013 at 12:53 PM

True… Okay – that the states can compel them to offer insurance at all then! :)

Skywise on November 29, 2013 at 12:47 PM

Can the State compel Hobby Lobby to be open on Sundays?

workingclass artist on November 29, 2013 at 1:00 PM

The question is simple: does freedom of religion belong to the people, or just non-profit organizations? A similar question was at stake in Heller – does the second amendment belong to the people, or to the state governments? The questions are quite stupid and answer themselves, which is why the statists try to obfuscate.

besser tot als rot on November 29, 2013 at 12:53 PM

Yep.

Totalitarians take a dim view of religion.

workingclass artist on November 29, 2013 at 1:03 PM

They’re going to try up here left-most corner:

Washington: Catholic Hospitals May be Required to Perform Abortions

kcewa on November 29, 2013 at 12:42 PM

The USCCB says they won’t comply and will shut them down.

Once the local government is faced with absorbing the expense of treating the poor that these hospitals and clinics take on they will get an eye opener.

workingclass artist on November 29, 2013 at 1:09 PM

“thou shalt not kill”

WryTrvllr on November 29, 2013 at 11:24 AM

You sure about that? God had the Israelites out there fighting hundreds of wars and killing tens of thousands of people. Are you sure you have not been taken in by the propagndists?

In Exodus 20:13 we have the Fifth Commandment “Thou Shalt Not Kill”. Take a good look at that word “Kill”. In the Hebrew Manuscript the word is “Ratsach” which means: Murder; ie – to Murder, a Murderer; to dash to pieces. Thus, Exodus 20:13 Actually reads “Thou Shalt Not MURDER”. Next, look to Exodus 21:12 “He that smiteth a man so that he die, shall be surely put to death”. Here, the Hebrew word translated ‘Smiteth’ is “Nakah”, which means: Murder, To Slay, to make slaughter. Thus, Exodus 21:12 Actually reads “He that Murders a man so that he die, shall be surely put to death”.

Next, look to Exodus 21:14 “But if a man come presumptuously upon his neighbor to slay him with guile; thou shalt take him from mine altar, that he may die”. The Hebrew word translated ‘Slay’ here is “Harag”, which means: To Smite with Deadly Intent; To Murder. The Hebrew word translated ‘Guile’ here is “Ormah”, which means: Trickery, Craftiness; Deceitful Strategy. Thus, Exodus 21:14 Actually “But if a man come presumptuously upon his neighbor to Murder him with a Deceitful Strategy; thou shalt take him from mine altar, that he may die”.

Now move over to Deuteronomy 19:11 + 12 “But if any man hate his neighbor, and lie in wait for him, and rise up against him, and Smite him mortally that he die, and flee into one of these cities: Then the elders of his city shall send and fetch him thence, and deliver him into the hand of the Avenger of Blood, that he may die”. Again, the Hebrew word translated ‘Smite’ here is “Nakah”, which means: Murder, To Slay, to make slaughter. But what is this ‘Avenger of Blood’? The Hebrew word translated ‘Avenger’ here is “Ga’al”, which means: To Redeem (According to the Ancient Law of Kinship) The Next of Kin, Kinsfolk; To Redeem Blood for Blood: ie – Revenge – The Kinsman Redeemer. So, the Murderer was to be put to death by the Nearest of Kin! But what if the death was an accident? Deuteronomy 19:2 thru 6 tells what to do with those who kill by mistake; by accident. They were to be moved away to a far off city, thereby giving the relatives of the one accidentally killed time to cool off, and to not seek revenge.

astonerii on November 29, 2013 at 1:12 PM

If the Hobby Lobby case actually settles anything, I’d hope it would be that question rather than the religious liberty debate which dominates the headlines.

That’s a losing question. Federal minimum wage has already been ruled constitutional. If the Feds can mandate a certain dollar payment, they can similarly mandate payment in the form of goats, bread, contraceptives, or any other particular good. The case needs to be framed in the First Amendment context.

blammm on November 29, 2013 at 1:27 PM

My consistent answer to that question is to say poppycock.

It’s a matter of law, not of your personal opinion. Dear Star Trek enthusiast, would you recognize a life form if it differed from what you expected, from what you could accept? Would you recognize an alien life form if one jumped out the bushes and bit you on the leg? You fail the life-form recognition test, sorry, Star Fleet is not for you.

bour3 on November 29, 2013 at 1:30 PM

I’d like SCOTUS to use this as an opportunity to address the authority of the federal government, assumed via the ACA, to define minimum required coverage period. Why should I have to buy a plan that covers birth control, drug rehab, maternity, etc rather than buy only the coverage that I want?

Charlemagne on November 29, 2013 at 10:06 AM

they did address it. judge Roberts said the federal govt didn’t have that authority. but they could tax people who didn’t carry a certain level of insurance.

chasdal on November 29, 2013 at 1:31 PM

… rather if they have the freedom to decide which – if any – benefits they offer the employee of any kind and to live with the consequences of those decisions.

If you are looking for the Supreme Court to decide on that basis then you have already lost. The minimum wage is constitutional, and the wage paid to employees is the most basic benefit offered by employers.

The Court has ruled that even the most tenuous connection to economic activity gives the Federal government the right to make law. Based on that, any direct benefit provided by employers to employees may be regulated. That’s why this case is being fought on religious freedom grounds: does the government’s right to regulate the market place trump the participant’s right to follow their religious beliefs?

The government is trying to show that religious freedom is not at issue here, because they know they will win if the court agrees.

dirc on November 29, 2013 at 1:31 PM

This is a very complex issue, and I agree with the majority of opinions being expressed here, but to play the devil’s advocate, does this mean Starbuck’s should be allowed to help smuggle young people to Canada or elsewhere, if an all out war required the draft to be reinstated?

WryTrvllr on November 29, 2013 at 10:53 AM

What does that have to do with anything? Assisting someone escape justice is illegal, and has nothing to do with the requirements that are heaped up on employers.

Count to 10 on November 29, 2013 at 2:24 PM

Can the State compel Hobby Lobby to be open on Sundays?
workingclass artist on November 29, 2013 at 1:00 PM

Yes. They could (and did) compel stores to be closed on Sundays not too long ago.

Skywise on November 29, 2013 at 2:36 PM

Once the local government is faced with absorbing the expense of treating the poor that these hospitals and clinics take on they will get an eye opener.

workingclass artist on November 29, 2013 at 1:09 PM

I can easily see Hobby Lobby shuttering its doors and putting 13,000 people out of a job. What choice do they have if they believe that abortion is a sin and the government compels them to fund it?

Happy Nomad on November 29, 2013 at 2:55 PM

Can the State compel Hobby Lobby to be open on Sundays?
workingclass artist on November 29, 2013 at 1:00 PM

Yes. They could (and did) compel stores to be closed on Sundays not too long ago.

Skywise on November 29, 2013 at 2:36 PM

The court ruled in one case that the Sunday rule coincided with the Christian Sabbath and the Orthodox Jews lost their case since it didn’t prevent them from practicing their religious observance of Sabbath.

All 4 cases are interesting.

Within 10 years those Blue Laws began to change at the local level and they’re still changing.

workingclass artist on November 29, 2013 at 3:07 PM

I can easily see Hobby Lobby shuttering its doors and putting 13,000 people out of a job. What choice do they have if they believe that abortion is a sin and the government compels them to fund it?

Happy Nomad on November 29, 2013 at 2:55 PM

That or they’ll sell it.

workingclass artist on November 29, 2013 at 3:09 PM

I can easily see Hobby Lobby shuttering its doors and putting 13,000 people out of a job. What choice do they have if they believe that abortion is a sin and the government compels them to fund it?

Happy Nomad on November 29, 2013 at 2:55 PM

That or they’ll sell it.

workingclass artist on November 29, 2013 at 3:09 PM

If they were to sell, Hobby Lobby would still not be the same store. Their Christian roots extend beyond closing on Sundays so that employees can have time to spend time with their families. The merchandise would change and, frankly, there are plenty of places you can buy craft supplies. I’ve been a loyal Hobby Lobby customer specifically because I couldn’t buy a frame on a Sunday.

Happy Nomad on November 29, 2013 at 3:46 PM

If they were to sell, Hobby Lobby would still not be the same store. Their Christian roots extend beyond closing on Sundays so that employees can have time to spend time with their families. The merchandise would change and, frankly, there are plenty of places you can buy craft supplies. I’ve been a loyal Hobby Lobby customer specifically because I couldn’t buy a frame on a Sunday.

Happy Nomad on November 29, 2013 at 3:46 PM

Agreed.

If they are forced to sell…It is Oppression.

workingclass artist on November 29, 2013 at 3:53 PM

One only has to look at this administratons history ofmattacks on Christians to know what they want. Get rid of all our freedoms including religious ones.

Bullhead on November 29, 2013 at 4:05 PM

Well, we must presume that whatever 0b00ba had on Roberts that influenced his opinion on this law last year is still in his hip pocket.
Akzed on November 29, 2013 at 11:15 AM

You gotta know that it had something to do with his questionable adoption of his two “Hispanic” children from Ireland.

Cleombrotus on November 29, 2013 at 4:51 PM

BS – If a corporation ceases to exist, are the people all gone?

News2Use on November 29, 2013 at 10:27 AM

No, no more than the people in a family would all be gone if a family ceased to exist. Imagine a man and a woman, each with children from prior relationship/marriages, get married to each other. They have formed a family. After a few years, the man and woman divorce and move (with their respective children) to different homes. The family they once were has now ceased to exist, but the people have not.

The people who once made up the now-defunct corporation in your example move on and form new associations, perhaps even new corporations, just as the people who once made up the old family (in my example) move on and form new families.

AZCoyote on November 29, 2013 at 5:20 PM

Interestingly, if the Court rules for the employers, that application of the RFRA may itself violate the Establishment clause.

righty45 on November 29, 2013 at 6:35 PM

Interestingly, if the Court rules for the employers, that application of the RFRA may itself violate the Establishment clause.
 
righty45 on November 29, 2013 at 6:35 PM

 
 
And a meddling federal government was the catalyst. You’re right. That is interesting.

rogerb on November 29, 2013 at 7:33 PM

Interestingly, if the Court rules for the employers, that application of the RFRA may itself violate the Establishment clause.

righty45 on November 29, 2013 at 6:35 PM

There are two big flaws in that analysis:

1) Caldor was concerned with laws which burdened one employee to benefit another. The Sabbath observer’s day off meant that the non-believer had to pick up the slack. Since the employer is making the decision as to a benefits package for all employees, it’s not the zero-sum game that was present in Caldor. The employer is making the decision in accord with his/her religious sensibilities, not those of his/her employees necessarily.

2) I find it hard to believe that forcing an employee to obtain contraception through alternate means (including via supplemental insurance or out-of-pocket expenditure) would constitute a “substantial burden” on that employee.

blammm on November 29, 2013 at 8:56 PM

There are two big flaws in that analysis:

1) Caldor was concerned with laws which burdened one employee to benefit another. The Sabbath observer’s day off meant that the non-believer had to pick up the slack. Since the employer is making the decision as to a benefits package for all employees, it’s not the zero-sum game that was present in Caldor.

I don’t see a principled reason for limiting Caldor and its progeny to situations in which “one employee is burdened to benefit another.” Indeed, Caldor itself expressed concern not only for the burden imposed on non-religious employees, but also the burden imposed on other third-party non-beneficiaries like the employer. See Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 708-709 (1985) (“The [statute] . . . decree[s] that those who observe a Sabbath any day of the week as a matter of religious conviction must be relieved of the duty to work on that day, no matter what burden or inconvenience this imposes on the employer or fellow workers . . . the statute takes no account of the convenience or interests of the employer or those of other employees who do not observe a Sabbath.”) The lesson from Caldor (and Cutter) then, is that the government cannot grant statutory exemptions for religiously-inspired practices that impose significant burdens on third party non-beneficiaries. The beneficiaries of a statutory exemption here are the religious for-profit employers, and the third-party non-beneficiaries are non-religious employees that must incur substantial expenses to purchase contraception due to the statutory exemption.

Your zero-sum game argument suffers from the same definitional problem. It is not a zero sum game between employees, but it is a zero sum game between the employer and the non-religious employees. And there is no principled reason under the Establishment clause to be concerned with the former but not the latter.

2) I find it hard to believe that forcing an employee to obtain contraception through alternate means (including via supplemental insurance or out-of-pocket expenditure) would constitute a “substantial burden” on that employee.

blammm on November 29, 2013 at 8:56 PM

I don’t. The contraceptive mandate itself is premised on the notion that failing to provide contraceptive coverage imposes significant costs on employees. If the government considered it a substantial enough burden to warrant passing the law, I don’t see why they can argue it’s not a substantial enough burden to implicate concerns under the Establishment clause.

That said, I think there are plenty of valid objections to Schwartzman’s theory (one of which is that it seems like it would likely result in many, if not most applications of the RFRA being invalid). Still, I think it’s a serious argument and I hope it’s litigated somewhere, somehow.

righty45 on November 29, 2013 at 10:28 PM

And a meddling federal government was the catalyst. You’re right. That is interesting.

rogerb on November 29, 2013 at 7:33 PM

The government is going to be the catalyst for any Establishment clause violation, because by its terms the clause only reaches state action. So that actually may be the least interesting thing about the argument.

righty45 on November 29, 2013 at 10:31 PM

99

rogerb on November 30, 2013 at 7:44 AM

bmore

rogerb on November 30, 2013 at 7:45 AM

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