Fireworks at Supreme Court over emergency injunction applied against “accommodation”

posted at 9:02 am on July 4, 2014 by Ed Morrissey

After the Hobby Lobby decision, a number of people pointed to a reference to the so-called “accommodation” for religious-oriented organizations in the HHS contraception mandate to conclude that the Supreme Court’s decision would be limited to the for-profit sector, and only to certain methods of contraception. A series of orders the next day showed the latter was not true, and a decision late yesterday suggests the former isn’t, either. An emergency injunction on behalf of Wheaton College sparked the ire of three Supreme Court justices, who issued an angry dissent to the unsigned order that temporarily sets aside the “accommodation”:

Today, the Supreme Court granted Wheaton College an injunction pending appeal against enforcement of the contraception mandate, even though Wheaton was eligible for the accommodation HHS has provided for religious non-profits.  Specifically the Court ordered:

If the applicant informs the Secretary of Health and Human Services in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.

This prompted three of the four dissenters in Hobby Lobby to issue a statement scolding the rest of the court for ignoring what they claim had been decided on Monday:

Justice Sonia Sotomayor said the action cast doubt on the very accommodation the court’s majority seemed to endorse Monday in Burwell v. Hobby Lobby, which concerned businesses that objected to providing birth control that offends the owners’ beliefs.

“Those who are bound by our decisions usually believe they can take us at our word,” wrote Sotomayor, who was joined by Justices Ruth Bader Ginsburg and Elena Kagan. “Not so today.”

She said Thursday’s order “evinces disregard for even the newest of this court’s precedents and undermines confidence in this institution.”

First, the issuance of a temporary injunction is not a decision, as Sotomayor well knows. Sotomayor herself issued a temporary injunction to stop enforcement of the mandate on the Little Sisters of the Poor, which caused an eruption of hysteria and Know-Nothing anti-Catholic bigotry at the beginning of the year — a foreshadowing of what we saw this week, actually. A stay is just a pause that allows the courts to consider the issue at hand before enforcement does serious damage to the plaintiff, based on a reasonably good chance for the petitioner to win the case but not a decision on the merits. The court signaled that they want a closer look at the accommodation, not yet that it’s not acceptable.

But didn’t they already rule on the accommodation in Hobby Lobby? Not yet, as I warned earlier this week. Justice Samuel Alito’s opinion does cite the accommodation, but never directly finds that it satisfies the RFRA. He mentions it to demonstrate an entirely different point — that the government didn’t offer to Hobby Lobby what it did to other organizations and which HHS claims as satisfactory to relieve the burden on religious expression, which means that even by the government’s own standard they did not use the least burdensome method to satisfy what they consider a compelling state interest:

Actually, the Hobby Lobby decision never even concedes that a contraception mandate is a compelling state interest. The “narrowly decided” part of Hobby Lobby is that the regulation failed on a very basic, entry-level issue. The rest of these issues are still open for debate at the Supreme Court, and the injunction yesterday shows that the justices aren’t done with the mandate yet.

That brings us to another objection from Sotomayor that is rather stunning. Sotomayor claims that the sincerity of religious beliefs and the burden to them by regulation is immaterial in determining the validity of their claim of injury to free religious expression:

Sotomayor said she was not calling into question the college’s sincerity.

“I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she wrote. “But thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.”

That’s almost entirely wrong. Under the RFRA and previous precedent, the sincerity of religious belief and the burden on such by regulation is a determining factor. Religious expression should only be “substantially burdened,” the RFRA states, “in furtherance of a compelling governmental interest,” and then only by “the least restrictive means of furthering that compelling governmental interest.” Alito’s decision in Hobby Lobby points out that “Congress was confident of the ability of the federal courts to weed out insincere claims,” not that sincerity was of no matter. Since Sotomayor concedes that Wheaton College’s objection is sincere, then the RFRA tests apply, because the Supreme Court already found that the mandate “substantially burdened” religious expression in Hobby Lobby.

Does the HHS contraception mandate “accommodation” pass those tests? Not even close, as I argued yesterday at The Fiscal Times:

Contraception in almost all of its forms is inexpensive and widely available. Furthermore, although HHS considers contraception preventive medicine, it doesn’t prevent disease or block the spread of contagion, unless one considers babies a plague.

Besides, there is no crisis in accessing contraception. As noted above, the CDC’s 26-year study of unplanned pregnancies (1982-2008) shows that 99 percent of all sexually active women seeking to avoid pregnancy accessed contraception. Access to contraception is such a non-issue that the word “access” only appears once in the entire report, and that in a footnote about access to health insurance. So despite all of the shouts of doom, nothing in this decision impacts the already-universal access to contraception Americans have had for the last four decades.

Furthermore, even if this were some kind of contraception-access crisis in the US, HHS chose the most burdensome method of addressing it. The federal government already subsidizes contraception for low-income Americans through Title X; the Obama administration or Congress could have expanded that program. They could have reclassified birth-control pills as over-the-counter rather than requiring a prescription, as Bobby Jindal and other Republicans have proposed.

Instead of trying those intermediate remedies, HHS instead forced employers and their insurers to provide contraception for free regardless of their religious beliefs, while at the same time arguing hypocritically that any resistance to that idea was tantamount to interfering in a private transaction between a woman and her doctor.

This injunction isn’t a “bait and switch,” as Sotomayor et al alleged yesterday. It just showed how weak the HHS case against Hobby Lobby actually was, and how badly HHS bungled this from beginning to end. Don’t expect the accommodation to survive, although it might just morph into a refusal letter to HHS, as Lyle Denniston predicts. That will turn this regulation into an unenforceable mess, which is exactly what critics claimed it was from the beginning.


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Well, this will certainly spoil the psychotic left’s 4th of July … not that they celebrate it anyway.

darwin on July 4, 2014 at 9:07 AM

Right on track to single-payer. Full steam ahead.

HiJack on July 4, 2014 at 9:11 AM

Interesting that Breyer didn’t sign on to Sotomayor’s absurd dissent.

DisneyFan on July 4, 2014 at 9:11 AM

Figures the three Harpies would “speak” with their lady parts (I really wanted to use a 4-letter word that starts with “spe”, but this isn’t AoSHQ).

Steve Eggleston on July 4, 2014 at 9:12 AM

Actually, the Hobby Lobby decision never even concedes that a contraception mandate is a compelling state interest.

Contraception is not even “health care”. It’s a lifestyle choice, like rock-climbing. Must everyone has “health insurance’ that pays for helmets if they decide to climb rocks? After all, they might fall and end up in the hospital …

This is all too insane and stupid.

ThePrimordialOrderedPair on July 4, 2014 at 9:13 AM

What is wrong with that woman. Either she does the job she was hired to do on a consistent basis, include all of the robes here, or she decides to go and teach law somewhere.

Kissmygrits on July 4, 2014 at 9:14 AM

“Those who are bound by our decisions usually believe they can take us at our word,” wrote Sotomayor, who was joined by Justices Ruth Bader Ginsburg and Elena Kagan. “Not so today.”

 
Please keep that in mind when the case over wording regarding federal and state exchanges reaches your level.
 
Thanks in advance.

rogerb on July 4, 2014 at 9:14 AM

no matter how much one believes oneself to be a wise latina that doesn’t actually make it so….

dmacleo on July 4, 2014 at 9:15 AM

The Left celebrates the 4th of July only in so far as how much more they have to travel in order to destroy US institutions/culture.

Gebirgsjager on July 4, 2014 at 9:15 AM

WTF Cap’n Ed?

You dare question a wise Latina?

Spider79 on July 4, 2014 at 9:16 AM

Those women are just politicking ahead of 2014 and 2016 — they aren’t Supreme Court justices; they’re democrat party handmaidens. Always will be.

Rational Thought on July 4, 2014 at 9:17 AM

What is wrong with that woman. Either she does the job she was hired to do on a consistent basis,

Kissmygrits on July 4, 2014 at 9:14 AM

The wise Latina was hired to empathize (i.e. rule by retarded whim) – officially. She isn’t required to be consistent, or even rational, in any way. You can thank the Vichy GOP in the Senate for ever letting this moron get out of committee.

ThePrimordialOrderedPair on July 4, 2014 at 9:18 AM

Right on track to single-payer. Full steam ahead.

HiJack on July 4, 2014 at 9:11 AM

Or….Single-prayer…

right2bright on July 4, 2014 at 9:18 AM

Shows that one can be a wise Latina and also a not-so-bright Justice.

RSbrewer on July 4, 2014 at 9:19 AM

Actually, the Hobby Lobby decision never even concedes that a contraception mandate is a compelling state interest.

In part because the Court did not decide the case on First Amendment grounds, but under the RFRA.

A court (state or federal) will always try to resolve a case without addressing constitutional issues, because such an analysis brings into question whether a co-equal branch of government violated the constitution.

In Hobby Lobby, they just interpreted the language of a statute. So arguably, a First Amendment challenge to the contraceptive mandate is still possible in another case.

Wethal on July 4, 2014 at 9:21 AM

A village is missing its “wise Latina.”

ExpressoBold on July 4, 2014 at 9:22 AM

The Obama Presidency -
“…..a mess, which is exactly what critics claimed it was from the beginning.”

Privatize It on July 4, 2014 at 9:22 AM

Furthermore, although HHS considers contraception preventive medicine, it doesn’t prevent disease or block the spread of contagion, unless one considers babies a plague.

Well, there you go.

You see, if some poor woman has sex, and is punished with a baby…

Joseph K on July 4, 2014 at 9:24 AM

This is what happens when you write a law that is basically a blank check that can be re-written at a moments notice.

The Secretary shall decide
The Secretary shall create
The Secretary shall determine
The Secretary shall formulate

GarandFan on July 4, 2014 at 9:24 AM

It’s funny to see the overreaction over a few people who have jobs being asked to pay for some forms of their own birth control.

Blake on July 4, 2014 at 9:25 AM

Sotomayor might want to brush up on her precedent:

United States v. Ballard, 322 U.S. 78 (1944),was an appeal of the conviction of two leaders of the new religious “I AM” Activity movement for fraudulently seeking and collecting donations on the basis of religious claims that the defendants themselves did not believe.

The United States Supreme Court held that the question of whether the defendants’ claims about their religious experiences were actually true should not have been submitted to a jury. The Court arrived at this conclusion in part because the “freedom of religious belief… embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths.” However, the Court did not address the issue of whether the sincerity of the defendants’ beliefs was a proper question for the jury.

Justice Robert H. Jackson, dissenting, would have gone even farther, suggesting that the entire case should be dismissed for coming too close to being an investigation into the truth of a religious conviction. He would have held unconstitutional a jury determination of whether the defendants’ religious beliefs were sincere, as well as whether they were true.

Wethal on July 4, 2014 at 9:26 AM

Hmmmmmmmmmmmmmmmmmmm,…WTF:

That’s almost entirely wrong. Under the RFRA and previous precedent, the sincerity of religious belief and the burden on such by regulation is a determining factor.
====================

https://twitter.com/justiacom
justiacom @justiacom · 14h

Hobby Lobby Aftermath: Does “Person” in RFRA Include a Guantanamo Bay Detainee? http://j.st/Z5Ay

Thursday, July 3, 2014
Hobby Lobby Aftermath: Does “Person” in RFRA Include a Guantanamo Bay Detainee?
*********

In an emergency motion for a Temporary Restraining Order filed today in Hassan v. Obama in the District Court for the District of Columbia, the petitioner relies on Monday’s controversial decision by the United States Supreme Court in Burwell v. Hobby Lobby.

Petitioner, Imad Abdullah Hassan, a detainee at Guantánamo Bay, invokes the Religious Freedom Restoration Act (RFRA) to prevent the federal government from depriving him of ” the right to participate in communal prayers during the Islamic holy month of Ramadan,” a tenet of his religious faith.
(More….)
==========

http://lawprofessors.typepad.com/conlaw/2014/07/hobby-lobby-aftermath-does-person-in-rfra-include-a-guanta%CC%81namo-bay-detainee.html

canopfor on July 4, 2014 at 9:28 AM

A village is missing its “wise Latina.”

ExpressoBold on July 4, 2014 at 9:22 AM

That village is the Bronx. That’s where this fool was born. That’s where she acquired all her “rich experiences of life” that make her so much wiser and more qualified to sit on the SCOTUS than say, a Kentucky coal miner’s daughter or an Idaho farmer’s son. Because in Obama’s America, having the right ethnic background (i.e., non-Anglo-American) automatically makes one infinitely superior to the people who share the same ethnicity as this nation’s founders.

AZCoyote on July 4, 2014 at 9:29 AM

The root of all the Liberal hysteria is that it is THEIR religion being challenged.

Liberals worship at the altar of hedonism and abortion is their most sacred rite.
Of course they can’t admit to that. Doing so would prevent the government from sanctioning abortion because it is, in effect, human sacrifice.
But make no mistake, their attitude toward anything even mildly restrictive of abortion is that of a religious zealot.

Curmudgeon on July 4, 2014 at 9:30 AM

MeanWhile, ……………….:

justiacom @justiacom · Jul 2

Faith Leaders letter to Obama: Exempt religious groups from order barring #LGBT bias in hiring http://j.st/Z5pM
=====================================

Faith leaders: Exempt religious groups from order barring LGBT bias in hiring
July 2 2014
***********

http://www.washingtonpost.com/local/faith-leaders-exempt-religious-groups-from-order-barring-lgbt-bias-in-hiring/2014/07/02/d82e68da-01f1-11e4-b8ff-89afd3fad6bd_story.html

canopfor on July 4, 2014 at 9:36 AM

This isn’t an over reaction, but an intended reaction. Again, it’s only a stay and Kennedy is suggesting that the so called religious mandate will pass constitutional muster. The three sisters are publicly posturing knowing that spineless justices such as Roberts and Kennedy can be “enlightened”.

cthemfly on July 4, 2014 at 9:38 AM

Liberals worship at the altar of hedonism and abortion is their most sacred rite.
Curmudgeon on July 4, 2014 at 9:30 AM

You forgot power, force, a highly centralized government, lack of choices, taxation, unionism, and I could go on and on.

CW on July 4, 2014 at 9:38 AM

Wouldn’t it be better if the government stayed out of stuff, people/corporations/schools act on their beliefs and people can decide whether they want to associate or not.?

Cindy Munford on July 4, 2014 at 9:38 AM

“I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she wrote. “But thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.”

Corporations can, do, and have exercised religious rights and the Court has recognised them on previous occasions.

The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term ‘person,’ but on the phrase ‘exercise of religion.’ According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion. Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their religious ‘autonomy . . . often furthers individual religious freedom as well.’ Post, at 15 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment)). But this principle applies equally to for-profit corporations: Furthering their religious freedom also ‘furthers individual religious freedom.’ In these cases, for example, allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.

How cannot the same be said of Wheaton College, which is a non-profit corporation – the exact type of corporation organisation that HHS has already acknowledged is protected by RFRA?

Resist We Much on July 4, 2014 at 9:41 AM

Wouldn’t it be better if the government stayed out of stuff, people/corporations/schools act on their beliefs and people can decide whether they want to associate or not.?

Cindy Munford on July 4, 2014 at 9:38 AM

Cindy Munford: Common sense me thinks, but noooooooooo, the Left love
agitation and pitting groups against one another!:)

canopfor on July 4, 2014 at 9:42 AM

I love the irony of all the Dems who sponsored and voted for the RFRA that Bill Clinton signed thought they were only helping poor native Americans have protection to chew peyote in religious rituals.

Wethal on July 4, 2014 at 9:44 AM

She said Thursday’s order “evinces disregard for even the newest of this court’s precedents and undermines confidence in this institution.”

Too late; I lost my last shred of confidence in the SC after the Kelo decision. Five of the nine justices believe that their job is re-writing the Constitution to bolster their ideology. Roberts whoring himself on 404ChoomCare was just another unnecessary nail in that coffin.

RoadRunner on July 4, 2014 at 9:46 AM

How cannot the same be said of Wheaton College, which is a non-profit corporation – the exact type of corporation organisation that HHS has already acknowledged is protected by RFRA?

Resist We Much on July 4, 2014 at 9:41 AM

Churches themselves are non-profits. They have to have some kind of legal status to hold title to property.

Wethal on July 4, 2014 at 9:46 AM

I didn’t know SCOTUS justices were allowed to throw tantrums from the bench.

gophergirl on July 4, 2014 at 9:47 AM

This was never about providing contraception or access to it. It was a deliberate attempt by the Obama administration to challenge the 1st Amendment and attack it’s underpinning regarding the freedom of religion. Their goal is to control the populace and there are three primary targets to required to accomplish this – control healthcare; confiscate and ban all weapons; and eliminate religion as an obstacle.

iamsaved on July 4, 2014 at 9:53 AM

I’m not sure why the contraception mandate is being examined in any manner other than it was intended: as a campaign issue to be used against Republicans.

BKeyser on July 4, 2014 at 9:53 AM

This was never about providing contraception or access to it. It was a deliberate attempt by the Obama administration to challenge the 1st Amendment and attack it’s underpinning regarding the freedom of religion. Their goal is to control the populace and there are three primary targets to required to accomplish this – control healthcare; confiscate and ban all weapons; and eliminate religion as an obstacle.

iamsaved on July 4, 2014 at 9:53 AM

True. It’s a continuation of Hosanna Tabor, in which the administration used the term “Freedom of worship.”

Do whatever rituals you want behind the closed doors of your house of worship, but act according to secular values and use only secular vocabulary in public.

Wethal on July 4, 2014 at 9:56 AM

Wise is to Sotomayor as Genius is to Kanye.

HotAirian on July 4, 2014 at 10:00 AM

Ah! I remember Wheaton College well. When I was in Chicago I had a Wheaton College grad working for me. She was a blonde former Miss Arlington Heights and had the world’s longest legs. Those were the days.

bw222 on July 4, 2014 at 10:00 AM

I didn’t know SCOTUS justices were allowed to throw tantrums from the bench.

When you have lifetime tenure you can do just about anything you want.

myiq2xu on July 4, 2014 at 10:00 AM

I’m starting to feel like this is 1861.

Tard on July 4, 2014 at 10:01 AM

Happy 4th y’all see you on Monday
:)

cmsinaz on July 4, 2014 at 10:08 AM

I’m starting to feel like this is 1861.

Tard on July 4, 2014 at 10:01 AM

War on the Womynzes…or something…

workingclass artist on July 4, 2014 at 10:09 AM

The wise Latina was hired to empathize (i.e. rule by retarded whim) – officially. She isn’t required to be consistent, or even rational, in any way. You can thank the Vichy GOP in the Senate for ever letting this moron get out of committee.

ThePrimordialOrderedPair on July 4, 2014 at 9:18 AM

Ditto Elena Kagan.
One more liberal SCOTUS appointee, man, woman, black, white, or all 4 or those combined will be the end of us.
Obama has 2+ years to go, if he ever goes at all. We know how the Senate Judiciary Committee will vote.

leftamark on July 4, 2014 at 10:10 AM

She said Thursday’s order “evinces disregard for even the newest of this court’s precedents

Still searching for a similar statement when Obama was held in contempt.

and undermines confidence in this institution.”

Thats only because you don’t like the outcome. And that is evidence that you shouldn’t be a judge of any kind.

BobMbx on July 4, 2014 at 10:13 AM

“If the applicant informs the Secretary of Health and Human Services in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services…”

So the court doesn’t care if atheists have sincere objections to providing contraceptives? Is that an equal protection problem?

Akzed on July 4, 2014 at 10:18 AM

Figures the three Harpies would “speak” with their lady parts ………………….

Steve Eggleston on July 4, 2014 at 9:12 AM

…I’m not sure a couple of them…have “those”.

JugEarsButtHurt on July 4, 2014 at 10:19 AM

Did those women on the court miss a period?

davidk on July 4, 2014 at 10:19 AM

and an O/T before I go fire up the pit…
If you haven’t seen Dinesh D’Souza’s new film “America”, try to do so this weekend.

leftamark on July 4, 2014 at 10:20 AM

Wouldn’t it be better if the government stayed out of stuff, people/corporations/schools act on their beliefs and people can decide whether they want to associate or not.?

Cindy Munford on July 4, 2014 at 9:38 AM

And maybe, if we were freed from the shackles of a tyrannical government, we could pick a date and celebrate the day we declared our independence. Who’s with me!

massrighty on July 4, 2014 at 10:26 AM

Wow. 3 butthurt leftist Supreme Court justices.

Cry me a river, please.

22044 on July 4, 2014 at 10:27 AM

Well, I’d never accuse the “Wise Latina” of being cute when’s she angry. The mask slips and it’s just another typical liberal hissie fit unencumbered by logic or reasoned debate.

Drained Brain on July 4, 2014 at 10:29 AM

Will no one relieve us of this meddlesome Obamacare?

Paraphrasing from what led to St. Thomas Becket’s murder. . .

Just saying.

Get it out of here, already. We can get our own damn insurance.

Mariadee on July 4, 2014 at 10:30 AM

“I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she wrote. “But thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.”

From Hobby Lobby in which the Court looks at the ‘profit-making’ argument and, if such holds true for them, it certainly does for educational non-profits:

If the corporate form is not enough, what about the profit-making objective?

‘Each American jurisdiction today either expressly or by implication authorizes corporations to be formed under its general corporation act for any lawful purpose or business.’ 1 J. Cox & T. Hazen, Treatise of the Law of Corporations §4:1, p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher, Cyclopedia of the Law of Corporations §102 (rev. ed. 2010). While it is certainly true that a central objective of for profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy conservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well.

Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals. In fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the ‘benefit corporation,’ a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners. (See, e.g., M. Sanders, Joint Ventures Involving Tax-Exempt Organizations, 555 (4th ed. 2013) (describing Google.org, which ‘advance[s] its charitable goals’ while operating as a for-profit corporation to be able to ‘invest in for-profit endeavors, lobby for policies that support its philanthropic goals, and tap Google’s innovative technology and workforce’ (internal quotation marks and alterations omitted)); cf. 26 CFR §1.501(c)(3)–1(c)(3); Benefit Corp Information Center, online at http://www.benefitcorp.net/state-by-state-legislative-status; e.g., Va. Code Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (‘A benefit corporation shall have as one of its purposes the purpose of creating a general public benefit,’ and ‘may identify one or more specific public benefits that it is the purpose of the benefit corporation to create. . . . This purpose is in addition to [the purpose of engaging in any lawful business].’ ‘ ‘Specific public benefit’ means a benefit that serves one or more public welfare, religious, charitable, scientific, literary, or educational purposes, or other purpose or benefit beyond the strict interest of the shareholders of the benefit corporation . . . .’); S. C. Code Ann.§§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012Cum. Supp.).

More…

In Braunfeld v Brown, 366 U. S. 599, we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the ‘exercise of religion’ involves ‘not only belief and profession but the performance of (or abstention from) physical acts’ that are ‘engaged in for religious reasons.’ Employment Division v Smith, 494 U. S., at 877. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition. Thus, a law that ‘operates so as to make the practice of . . . religious beliefs more expensive’ in the context of business activities imposes a burden on the exercise of religion. Braunfeld, supra, at 605; see United States v Lee, 455 U. S. 252, 257 (1982) (recognizing that ‘compulsory participation in the social security system interferes with [Amish employers’] free exercise rights’).

If, as Braunfeld recognized, a sole proprietorship that seeks to make a profit may assert a free-exercise claim, why can’t Hobby Lobby, Conestoga, and Mardel do the same?

Indeed, why can’t a non-profit, educational institution assert a free-exercise claim and have it recognised and protected under RFRA?

Resist We Much on July 4, 2014 at 10:30 AM

“I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she wrote. “But thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.

Shorter Sotomayor: We’ll tell you when you’re religious beliefs are and aren’t violated.

englishqueen01 on July 4, 2014 at 10:30 AM

massrighty

Who’s with me!

I am.

Mariadee on July 4, 2014 at 10:31 AM

Right on track to single-payer. Full steam ahead.
HiJack on July 4, 2014 at 9:11 AM

VA health care for everyone! Yeah!

fight like a girl on July 4, 2014 at 10:33 AM

Also from Hobby Lobby

[T]he one pre-Smith case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 (1961), the Massachusetts Sunday closing law was challenged by a kosher market that was organized as a for-profit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked ‘standing’ to assert a free-exercise claim, but not one member of the Court expressed agreement with that argument.

It is quite a stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty, left for-profit corporations unprotected simply because in Gallagher—the only pre-Smith case in which the issue was raised—a majority of the Justices did not find it necessary to decide whether the kosher market’s corporate status barred it from raising a free-exercise claim.

While the Court in Gallagher ultimately rejected the petitioners’ Establishment Clause and Equal Protection arguments, remember that Gallagher, like Braunfeld, was decided in 1961 when blue laws banning the sale of certain products on Sunday, i.e.,’the Sabbath’, school prayer, school-sponsored Bible readings were fully constitutional. The Court wouldn’t deal the death blows to school prayer and readings until Engel v Vitale, 370 U.S. 421 (1962), and Abington School District v Schempp, 374 U.S. 203 (1963).

Does anyone believe that Justices Ginsburg, Sotomayor, Kagan, and Breyer* would vote today to uphold a state law that prevents Orthodox Jewish or Muslim butchers from selling their products on Sunday, which isn’t their Sabbath, and has the result of giving Christian businesses an extra day to engage in commerce (they would only be closed on Sundays, while Jewish businesses would be closed on Saturday and Sunday and Muslim entities would be unable to operate on Friday and Sunday) while limiting their customers’ access to kosher or halal goods?

Of course they wouldn’t.

They would agree with Justice Potter Stewart, who joined Justice Brennan’s dissent in Braunfeld, and wrote further:

Pennsylvania has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. It is a choice which I think no State can constitutionally demand. For me this is not something that can be swept under the rug and forgotten in the interest of enforced Sunday togetherness. I think the impact of this law upon these appellants grossly violates their constitutional right to the free exercise of their religion.

And, you’ll note that Justice Potter didn’t differentiate between profit and non-profit corporations or any other form of business entity, including ‘closely-held’ corporations and sole proprietorships.

If, instead of Hobby Lobby protesting the requirement that it pay for abortifacients, what if the company decided to divest and boycott from Apartheid South Africa? What if Conestoga Wood had fired its CEO for making a $1,000 donation to Prop 8 rather than asserting its religious right not to pay for drugs that terminate a pregnancy? What if Wheaton College exercised its right to boycott and divest from Israel or Big Oil companies, as many universities in the United States have already done?

All of these are, in essence, corporations exercising their right to associate. In National Association for the Advancement of Colored People v Alabama, 357 U.S. 449 (1958), the Court recognised an implied right of association and held that corporations (the NAACP is a non-profit CORPORATION):

‘[Its members have a right] to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment… [and that the freedom to associate under the First Amendment applies to individuals, organisations, and corporations that are dedicated to the] the advancement of beliefs and ideas is an integral and inseparable part of the Due Process Clause of the Fourteenth Amendment.’

Why is Wheaton College, which is dedicated to the advancement of education, beliefs, and ideas, any different from the NAACP when it does the same?

Resist We Much on July 4, 2014 at 10:34 AM

“If the applicant informs the Secretary of Health and Human Services in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services…”

So the court doesn’t care if atheists have sincere objections to providing contraceptives? Is that an equal protection problem?

Akzed on July 4, 2014 at 10:18 AM

I’d love to see that case move forward; I’d love to see an equal-protection argument in favor of the freedom to follow one’s conscience as regards paying for something morally disagreeable.

Imagine the responses on the left, when they couldn’t accuse anyone of religious zealotry.

massrighty on July 4, 2014 at 10:35 AM

Iowahawk is moving to Texas:

David Burge @iowahawkblog · 20h

Sellers just accepted my offer on a house in Texas. #BOOOOOOOOM

David Burge @iowahawkblog · 20h

Yes, to “IllinoisCanKissMyAssAndMyTaxesGoodbye.” RT @DanaPerino @iowahawkblog will you be changing your name?

davidk on July 4, 2014 at 10:38 AM

And Ginsburg retiring wouldn’t change that.

formwiz on July 4, 2014 at 10:39 AM

I’m starting to feel like this is 1861.

Tard on July 4, 2014 at 10:01 AM

.
“Starting” ?

listens2glenn on July 4, 2014 at 10:42 AM

An “accomodation” which requires an individual or organization to act against the dictates of their faith — which requires them to damage their faith mission by a work which counters same — isn’t an accomodation at all.

There is another type of accomodation which truly is an accomodation — the portion of the law which says that one can self-insure. The unions are already using this loophole to sidestep key Obamacare protections. I would say that if people of faith band together to form self-insurance organizations, we can legally obtain the protection our First Amendment practices demand.

unclesmrgol on July 4, 2014 at 10:45 AM

An “accomodation” which requires an individual or organization to act against the dictates of their faith — which requires them to damage their faith mission by a work which counters same — isn’t an accomodation at all.

There is another type of accomodation which truly is an accomodation — the portion of the law which says that one can self-insure. The unions are already using this loophole to sidestep key Obamacare protections. I would say that if people of faith band together to form self-insurance organizations, we can legally obtain the protection our First Amendment practices demand.

unclesmrgol on July 4, 2014 at 10:45 AM

Perhaps eligible people should look into insurance co-ops, like Medishare.

22044 on July 4, 2014 at 10:47 AM

“I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she wrote. “But thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.

Holy crap is this disturbing. She thinks she knows better than Wheaton College does about the burden on their religious beliefs?

And to think we were one switched vote away from having this loser justice’s opinion be part of the majority. Ugh.

changer1701 on July 4, 2014 at 10:48 AM

Those three SCOTUS hags have PDS – Penis Derangement Syndrome.

crash72 on July 4, 2014 at 10:49 AM

“I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she wrote. “But thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.”

SCOTUS Justice Sonia Sotomayor

Shorter Sotomayor:

“We’ll tell you when you’re religious beliefs are and aren’t violated.”

englishqueen01 on July 4, 2014 at 10:30 AM

.
That sums it up.

Progressive “bossy-poop”, sheep-skin holding politicians TYRANTS, in a nutshell.

listens2glenn on July 4, 2014 at 10:53 AM

davidk on July 4, 2014 at 10:38 AM

I’m going ot miss Iowahawk’s rides when he brings them to the good side of the toll booths.

Steve Eggleston on July 4, 2014 at 10:54 AM

“I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she wrote. “But thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.”

SCOTUS Justice Sonia Sotomayor

Resist We Much on July 4, 2014 at 9:41 AM

Resist We Much on July 4, 2014 at 10:30 AM

englishqueen01 on July 4, 2014 at 10:30 AM

changer1701 on July 4, 2014 at 10:48 AM

.
Why in the blessed HANG … can’t this be used as a VALID grounds-basis for ‘impeachment’?
.
Inquiring minds want to know

listens2glenn on July 4, 2014 at 11:02 AM

davidk on July 4, 2014 at 10:38 AM

I’m going ot miss Iowahawk’s rides when he brings them to the good side of the toll booths.

Steve Eggleston on July 4, 2014 at 10:54 AM

Texas has a toll road where the speed limit is 85.

davidk on July 4, 2014 at 11:07 AM

Texas has a toll road where the speed limit is 85.

davidk on July 4, 2014 at 11:07 AM

A (mostly-)private toll road, and Iowahawk’s machines would be right at home at 85.

Steve Eggleston on July 4, 2014 at 11:12 AM

nice piece, as are many of the comments

EastofEden on July 4, 2014 at 11:13 AM

The country isn’t going to split apart because of religion, it is going to split apart in spite of religion.

Limerick on July 4, 2014 at 11:18 AM

In light of my last post and the issue of kosher butchers and whether the liberals on the Court would uphold laws banning the sale of certain products on the Sabbath, i.e., Sunday, which would result in discrimination against Orthodox Jews, Muslims, and other religious practitioners, as well as atheists, agnostics, consider what is being said about the conservatives on the Court.

From TIME:

Let it sink in how five Supreme Court justices – each one is a male Roman Catholic – decided that sanctimonious abhorrence against birth control is legitimate grounds for letting giant corporations control the reproductive lives of women. Do you really think that a private corporation in non-Christian hands would be allowed to make it harder for employees to get basic health care?

After you’ve let this all sink in, be careful where you point the finger of praise, or blame. Yes, Protestant Evangelicalism ensured that five Roman Catholics would get to decide democracy’s fate. But this wasn’t supposed to be Protestantism’s fight. There are Justices who still own neckties older than Protestant opposition to birth control. No, this was a Roman Catholic agenda, and a Roman Catholic victory.

Don’t start making any changes to your insurance plans, Muslim, Sikh, or Hindu corporate owners! Let’s wait to see how much of a precedence has been set. I’d bet that it turns out to be very narrow in one sense: unless your religious conviction fits with the Catholic Hegemony, don’t expect to get your way too. There now are first-class citizens, the rich, powerful corporate owners acknowledged by the Catholic Dominion; and there’s everyone else, whose may not share the same religious opinions.

When you wake up from your pleasant slumbers, dreaming of an America where each individual cannot be controlled by someone else’s religion, let me know. Until then, try not to mutter in your sleep about liberty and democracy and how everything’s still just fine. If you manage to open your eyes, don’t be shocked at people ‘overreacting’, while you yourself appear to be sleepwalking. Don’t speak to me until you are ready to wake up into this new reality, where somebody else’s ideas about God can make our lives harder and more expensive. Don’t even look at me, while nobody is looking at you to figure out how to control your body.

Let all this sink in. If you cling to your faith that America remains a democracy, then you shall get the theocracy you deserve. The priests are already plotting out where you need to kneel next.

Would TIME EVER published this article if ‘Roman Catholicism’ was replaced with ‘Islam’ and ‘imams’ in place of ‘priests’?

As for theocracies, let’s remember who these people are:

The Absolutely Stunning Naïveté of the Left’s Useful Infidels

Gay—or Left?

And, look at the full-page ad that the New York Times ran in its front news section from the Freedom From Religion Foundation (recall that this same media organisation refused on 14 March 2012 to run an anti-Islam ad from the Stop the Islamisation of Nations, which itself mimicked a controversial anti-Catholic advertisement they published on 9 March 2012):

‘Dogma should not trump our civil liberties…All-male, All-Roman Catholic Majority on Supreme Court Puts Religious Wrongs over Women’s Rights…Congress must repeal RFRA…Employers should have no right to impose their religious beliefs upon workers.

FIGHT BACK!

Won’t you join FFRF in WAKING UP AMERICA TO THE GROWING DANGERS OF THEOCRACY?’

First, allow me to point out that one of the ‘all-male, all-Roman Catholic’ majority in Hobby Lobby, Anthony Kennedy, recently called millions of Americans ‘bigots’ for opposing SSM in United States v Windsor, 570 U.S. 12 (2013). I’m pretty sure that, if the Vatican and adherents of Roman Catholicism wanted to impose a theocracy in the United States, gay marriage wouldn’t stand a chance.

Anyhoo, look at that ad. Can you even begin to imagine what would we would say (not even accounting for the outcry from the Left) about an organisation that paid for and another entity that published an ad that said:

‘Marxist ideology, which was created by Jews (Da JOOOOOOOOOOS!) should not trump our civil liberties…[an] all-female, all-Jewish majority on Supreme Court puts Communism over individual rights and the free market…The Marxist Jewesses on the Court should have no right to deny the civil rights of free-born, American citizens, impose upon their beliefs, seize their property, and collectivise the society and economy.

FIGHT BACK!

Won’t you join FFJCT (Freedom From Jewish Commie Totalitarianism) in WAKING UP AMERICA TO THE GROWING DANGERS OF COMMUNIST DICTATORSHIP IMPOSE UPON US BY 5 ATHEISTIC, JEWESS (Actually not an oxymoron. See Marx and Trotsky, for two) COMMUNISTS?’

Additionally, pictured at the top is birth control pioneer Margaret Sanger, the racist, atheist founder of Planned Parenthood whose motto was ‘No Gods – No Masters.’

Sanger, of course, was, in the words of Arina Grossu:

‘[A] ‘racist, eugenicist extraordinaire’ whose role in pushing these Nazi-like laws resulted in more than 60,000 sterilizations of vulnerable people, including people she considered ‘feeble-minded,’ ‘idiots,’ ‘morons,’ and ‘human weeds’ [her term for people with dark skin.’

This is what they champion.

Resist We Much on July 4, 2014 at 11:26 AM

Why is Wheaton College, which is dedicated to the advancement of education, beliefs, and ideas, any different from the NAACP when it does the same?

Resist We Much on July 4, 2014 at 10:34 AM

Because most of the people at Wheaton are persons of pallor?

Wethal on July 4, 2014 at 11:37 AM

Wouldn’t it be better if the government stayed out of stuff, people/corporations/schools act on their beliefs and people can decide whether they want to associate or not.?

Cindy Munford on July 4, 2014 at 9:38 AM

that would cast light on its inefficiency

the whole idea is that they know best

and want to make lots of money in a closed system

Doyle Hargrave on July 4, 2014 at 11:38 AM

Just because Sotomayer is a political wh*re and runs roughshod over her alleged Catholic beliefs, doesn’t mean SHE can dictate that other religious folks must do the same.

SouthernGent on July 4, 2014 at 11:48 AM

MeanWhile, ……………….:

justiacom @justiacom · Jul 2

Faith Leaders letter to Obama: Exempt religious groups from order barring #LGBT bias in hiring http://j.st/Z5pM
=====================================

Faith leaders: Exempt religious groups from order barring LGBT bias in hiring
July 2 2014
***********

http://www.washingtonpost.com/local/faith-leaders-exempt-religious-groups-from-order-barring-lgbt-bias-in-hiring/2014/07/02/d82e68da-01f1-11e4-b8ff-89afd3fad6bd_story.html

canopfor on July 4, 2014 at 9:36 AM

This is insane. No religious group should ask permission of the U.S. Government for anything having to do with its internal practices, especially hiring. Hosanna-Tabor pretty much resolved that question.

rockmom on July 4, 2014 at 11:54 AM

It seems pretty clear from Morrisey’s dissection of Sontamayor’s dissent that she is in error on several fundamental points of law (an injunction is not a decision, etc.). Which begs the following question:

How many more affirmative action mediocrities will this country have to suffer before we’re finally rid of the whole rotten framework? Hopefully the example of a President and Supreme Court justice who are both inadequate to the responsibilities of their jobs will speed the day towards the realization of Martin Luther King’s actual words – but I’m not optimistic.

paladinofthelosthour on July 4, 2014 at 11:56 AM

“Those who are bound by our decisions usually believe they can take us at our word,” wrote Sotomayor.
.
Except no sane person takes you at your word, you freak.

higgins1991 on July 4, 2014 at 11:59 AM

All this caterwauling by the Left puts me in a decidedly good mood.

Had a beeotch on facebook screeching about the “5-4 decision”.

I told her I’d trade her that 5-4 decision for the 5-4 decision that said O-care was constitutional. I defriended her at the same time so she couldn’t argue with me.

Good times.

Meremortal on July 4, 2014 at 12:09 PM

Speaking as a Wheaton alum, fluke you Sotomayer.

Nutstuyu on July 4, 2014 at 12:12 PM

Surprised they couldn’t find it against the equal protection part of the Constitution, or discrimination portion, Hobby Lobby cover both male/female contraception.

RonK on July 4, 2014 at 12:20 PM

The wise Latina pulls back the mask for just a moment and we get to see the fascism underneath.

All it takes is for a woman/homosexual/black/hispanic/atheist/vegan/commie to start the crocodile tears about how oppressed they *feel* and the world must stop spinning until this great injustice is remedied.

White or Christian? Deal with it oppressor, just because you feel oppressed doesn’t make it so. You can’t feel oppressed and your sincerity can’t possibly actually be sincere. Your skin color and beliefs make you a second class citizen if a progressive decides you are, and they always do. Don’t forget Sotomayor’s little comment the next time some prog mocks you with ‘oh yeah whites and Christians have it so hard in this country.’ Sure, they don’t. Progs just wish they do.

deepelemblues on July 4, 2014 at 12:25 PM

To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.

Sounds like the government was requiring these institutions to fill out forms and notify various people that they intend to exercise their rights under the Constitution. That seems wrong at multiple levels.

I suppose the government already requires licenses and notifications in many such matters of individuals or groups exercising their rights already, but it does strike me as being basically contrary to the principles of freedom expressed in our nation’s founding documents.

s1im on July 4, 2014 at 12:26 PM

What disgusts me most in all of this is this administration. Any past administration in my lifetime would drop the entire issue after losing the first case and allow anyone with a religious objection to opt out of the contraception mandate, even allowing them to opt out of the farcical accommodation. But not this butthurt administration. They will continue to push, and push, and push because they imagine they have a populist advantage on this issue. And they imagine that it is their responsibility to stretch the constitution to the breaking point.

NotCoach on July 4, 2014 at 12:32 PM

Because most of the people at Wheaton are persons of pallor?
Wethal on July 4, 2014 at 11:37 AM

No, the majority are not albinos. But nice try.

Nutstuyu on July 4, 2014 at 12:34 PM

I have a query for those with more legal knowledge and expertise than I do:

IF a direct challenge to the Central Government’s “right” to regulate/mandate health insurance requirements, which were originally regulated/mandated at the state level, is decided in the non-governmental party’s favour, what previous SCOTUS-decided cases could be involved? Put another way, if a direct challenge to Central Government-mandated health insurance coverage is successful (birth control, pediatric coverage, maternity coverage, etc), what would be the odds of getting 404care ruled unconstitutional?

I’m thinking overturning Wickard v Filburn, as an example.

Newtie and the Beauty on July 4, 2014 at 12:39 PM

Ogabe’s bulldike harem throwing a tantrum? What a suprise!

None of these hack harridans should ever have been confirmed. Not one.

viking01 on July 4, 2014 at 12:40 PM

anybody appointed by obama is immediately ideologically suspect. I use to think a supreme court justice was an intellectual giant who put principle (the constitution) above every consideration. This dissent as well as ginsburg’s truly frightening dissent statement in Hobby Lobby proves to me that three woman justices are just polical hacks with a title. God help us if we do not win the senate and the presidency, we will lose the supreme court forever.

warmairfan on July 4, 2014 at 12:40 PM

Wouldn’t it be better if the government stayed out of stuff, people/corporations/schools act on their beliefs and people can decide whether they want to associate or not.?

Cindy Munford on July 4, 2014 at 9:38 AM

That thars crazy talk Munford. (:

Parmenides on July 4, 2014 at 12:42 PM

Ogabe’s bulldike harem throwing a tantrum? What a suprise!

None of these hack harridans should ever have been confirmed. Not one.

viking01 on July 4, 2014 at 12:40 PM

hahaha. Great first line.

I bet they wish they could throw a mantrum.

Parmenides on July 4, 2014 at 12:45 PM

Wouldn’t it be better if the government stayed out of stuff, people/corporations/schools act on their beliefs and people can decide whether they want to associate or not.?

Cindy Munford on July 4, 2014 at 9:38 AM

That thars crazy talk Munford. (:

Parmenides on July 4, 2014 at 12:42 PM

Yeah!

With actual independence from King Putt what sort of Independence Day would this be?

viking01 on July 4, 2014 at 12:47 PM

Lefty tears are delicious, especially on Independence Day.

txmomof6 on July 4, 2014 at 12:48 PM

Whenever you make those three bitter harpies angry, you know you’re doing something right.

Maybe Hobby Lobby was the start of a deliberate attempt to begin dismantling Obamacare piece by piece. Let’s hope.

will77jeff on July 4, 2014 at 12:51 PM

Sotomayor effectively conceded in her memoir that she couldn’t really read English until her twenties. She probably has read only the Google Translate version of the Hobby Lobby decision.

will77jeff on July 4, 2014 at 12:56 PM

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