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Jun 30 2014

Hobby Lobby and Harris: Bad, But Limited, Rulings

The Supreme Court handed down rulings in the last two cases of its term this morning, Harris v Quinn (whether public sector unions could charge fees to non-members) and Burwell v Hobby Lobby, the now-infamous challenge to the ACA’s contraception mandate. In both cases, I think the results are wrong but probably the best we could have hoped for given the court’s current configuration.

Let’s start with Harris (full ruling here). The court ruled that a public sector union could not charge home health care workers what are essentially dues if the workers did not want to join the union. But it’s a very limited ruling, applying only to these particular workers because they aren’t “full-fledged public employees.” Thus it does not affect the overwhelming majority of public sector employees or their unions. As Tom Goldstein put it on ScotusBlog:

“This is a substantial obstacle to expanding public employee unions, but it does not gut them.

It remains possible that in a later case the Court will overturn its prior precedent and forbid requiring public employees to contribute to union bargaining. But today it has refused to go that far. The unions have lost a tool to expand their reach. But they have dodged a major challenge to their very existence.”

Again, given the current configuration of the court, probably as good an outcome as we could have hoped for. Here’s what I’d love to see, though. Currently the law requires that unions negotiate on behalf of all workers, not just the ones who are part of the union. Let’s change that. If the union negotiates a great contract with higher pay and better benefits, if you didn’t support the union in those negotiations, you stay at your old pay rate with the old benefit package. That would end that issue immediately.

The same is true of the Hobby Lobby case (full ruling here). Bearing in mind that I haven’t read the whole thing yet, just some of the majority opinion, here are some initial thoughts. The court ruled that a closely-held corporation like Hobby Lobby (a closely-held corporation is one in which more than 50% of the company is owned by five or fewer people) was covered by the Religious Freedom Restoration Act and that they should be exempted from the contraception mandate of the Affordable Care Act.

But here again the ruling is very limited in several important ways. First, it applies only to closely-held corporations, not to other privately owned for-profit corporations and certainly not to publicly-held corporations. Second, the majority ruling makes very explicit that the ruling does not mean that a company can claim a religious liberty exemption from all kinds of other laws, or even for other forms of health care in their insurance policies, like blood transfusions or vaccinations:

This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice. United States v. Lee, which upheld the payment of Social Security taxes despite an employer’s religious objection, is not analogous. It turned primarily on the special problems associated with a national system of taxation; and if Lee were a RFRA case, the fundamental point would still be that there is no less restrictive alternative to the categorical requirement to pay taxes. Here, there is an alternative to the contraceptive mandate.

This is a hopeful sign that should allay fears of a slippery slope. Does anyone doubt that if they could have gone further, they would have? The five conservatives on the court had the votes to get the outcome they wanted, but they obviously didn’t have the votes to go any further. That means this ruling should not be viewed as some sort of carte blanche for any corporation to demand an exemption from any law they don’t want to comply with on the grounds of religion.

Also hopeful is that the majority opinion suggests that one of the alternative ways the government could achieve the same goal, including that they could extend the accommodation given to religious non-profits to religious for-profits as well. That accommodation requires that, when a non-profit corporation certifies that they have a religious objection to providing coverage for birth control in their group policy, the insurance company must provide such coverage at no cost in a rider for each individual employee. The court said that the government could extend that accommodation to closely-held for-profit corporations as well. Why is that hopeful? Scotus Blog again explains:

“The majority opinion, by holding that the nonprofit accommodation is a less restrictive means for accommodating closely held for-profit business suggests (at least to me) that the non-profits who object to that process (because they don’t want to have to certify that they object to providing contraceptive coverage) are in trouble. Seems unlikely the Court would say that this is a less restrictive means in this case, only to later hold that it is unconstitutional.”

Right. Which means that those dozens of cases now pending in the courts from non-profits claiming that this accommodation scheme is a violation of their religious freedom are very likely to lose those cases. The court is saying that there are less restrictive means of achieving the same interest in making contraception widely available, including extending the non-profit accommodation to closely held for-profit corporations as well. It would be quite odd for them to suggest that as a constitutional means of achieving that goal and then turn around and say that means is unconstitutional a few months later.

So it’s not a good day, but it could have been a far, far worse day. I would have preferred a ruling that said RFRA doesn’t apply. Hell, I would have preferred a ruling that struck down RFRA completely, but that was never going to happen. I was hoping for a ruling that said the contraception mandate was not a significant burden on religious liberty, but knew that was unlikely. As bad as it is, this is almost certainly as good an outcome as we could have hoped for under the circumstances.

52 comments

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  1. 1
    addiepray

    So why is it that contraception is such a special case? Why does a ruling like this only apply to that one form of medical intervention? I understand that they are trying to steer away from the slippery slope, but what is so special about this one issue.
    I know, the snarky answer is “lady bits, dirty sex, etc.” but I’m asking genuinely how they can draw what seems like an arbitrary line.

  2. 2
    theschwa

    Second, the majority ruling makes very explicit that the ruling does not mean that a company can claim a religious liberty exemption from all kinds of other laws, or even for other forms of health care in their insurance policies, like blood transfusions or vaccinations:

    Why, other than special pleading, is this limited only to contraception? What prevents this from being applied to vaccinations and blood transfusions 5, 10 years down the line?

    (I have not read the decision, yet, either, but hoped Ed might have a good reason)

  3. 3
    Henrietta Swan

    So although it may be good news, in this specific, limited case, by what legal principle could the court have possibly separated a contraception coverage mandate from that of a blood transfusion or vaccination?

    Doesn’t this give a very clear message that the majority justices are placing the sincerely held religious beliefs of one religion above another?

  4. 4
    gwangung

    Doesn’t this give a very clear message that the majority justices are placing the sincerely held religious beliefs of one religion above another?

    Pretty much, yes. (Actually make that the sincerely held religious but not medically accurate beliefs of one religion over another).

  5. 5
    d.c.wilson

    addiepray@1:

    So why is it that contraception is such a special case?

    Because Justice Kennedy wanted to make sure there was nothing that could be interpreted as getting between him and his dick pills.

  6. 6
    Modusoperandi

    I was hoping for a ruling that said the contraception mandate was not a significant burden on religious liberty, but knew that was unlikely.

    Did you know that to punish Jesus the Romans really forced Him to cover His employee’s genitals? It must have been agony, whipped and bleeding, pushed and dragged toward Calvary, Our Lord moving slowly, exhausted from the weight of bearing a thin folder of papers stating that His business’ healthcare insurance covered things He didn’t approve of, like uteruses. Woe!

  7. 7
    doublereed

    I don’t understand how this steers away from the slippery slope. It seems like a very limited ruling, but I fail to see how a slippery slope wouldn’t immediately apply.

  8. 8
    d.c.wilson

    Henrietta Swan @3:

    Doesn’t this give a very clear message that the majority justices are placing the sincerely held religious beliefs of one religion above another?

    Well, yes, but the sincerely held religious beliefs of old white Christian men job creators are the ones being held above the beliefs of those slutty slut pill using sluts who deserve to suffer the consequences for their slutty behavior. Just like Jesus said.

  9. 9
    gshelley

    Didn’t Kennedy try the “This ruling is specific and we aren’t saying anything about other circumstances” in the DOMA decision? Which was pretty much ignored by ever court that examined the issue as despite his insistence that it wasn’t related to State laws, the inevitable conclusion, as Scalia noted, was that they would also have to be ruled unconstitutional.
    I can’t see why it won’t be the same here, as Ginsburg noted in her dissent

  10. 10
    jws1

    As I just posted at Mano’s blog, I think SCOTUS just dared the rest of us to repeal the RFRA. Also, why won’t some company headed by women deny paying for vasectomies and Viagra et. al. on the grounds of religious freedom (vasectomies prevent life; and if God wanted you to have dirty sex he wouldn’t have made your dick limp)?

  11. 11
    raven

    Doesn’t this give a very clear message that the majority justices are placing the sincerely held religious beliefs of one religion above another?

    Seems to do exactly that.

    1. Why does this ruling based on the Orwellian named Religious Freedom Restoration Act, apply to only one religious belief?

    Anti-transfusion, anti-Vaxxer, and anti-medicine pro faith healing religious beliefs are every bit as common and legitimate as anti-birth control beliefs. And that is just for xians. Moslems, Hindus, Mormons, etc. have their own idiosyncratic prohibitions, anti-pork, anti-alcohol, anti-meat, etc..

    The Supreme court is picking and choosing which beliefs to enforce and which to ignore.

    2. And what about the religious freedom of Hobby Lobby’s 16,000 employees? The court is ruling that Steve Green’s religious beliefs are far more important because he is rich than those of 16,000 other working Americans.

    If anyone has an explanation, I’d like to hear it. It simply looks like an arbitrary ruling based on the religious beliefs of 5 Catholics on the Supreme court.

  12. 12
    M can help you with that.

    The Supreme Court seems to have adopted special pleading as a preferred practice. In the clinic-harasser case, they decided that harassment wasn’t harassment when it was outside of a clinic; and that it certainly wasn’t protest, because they didn’t want their reasoning to be applied in the case of protesting, because reasons.

    And here, they don’t want their reasoning to be applied to anything other than access to contraception, because reasons.

  13. 13
    raven

    FWIW, most Americans support the contraception mandate.

    Awaiting Supreme Court’s Hobby Lobby ruling, public favors …
    www. religionnews. com/…/awaiting-supreme-courts-hobby-lobby-ruling-…

    Jun 23, 2014 – And the polls consistently find

    most Americans support the mandate, … by a nearly 2-to-1 margin (61 percent support, 32 percent oppose).

    Americans support the BC mandate by a 2 to 1 margin, 61% to 32%. Oddly enough, most of those who support the BC mandate are…xians.

    Steve Green, Hobby Lobby, and the Supreme Court don’t even represent most American xians.

  14. 14
    Zeno

    No doubt some companies will scramble to try to get in under the exemption umbrella, perhaps restructuring to claim that they are “closely held” family companies. No doubt additional lawsuits will arise and this will end up back in the Supreme Court. Since the Supreme Court dislikes overturning its own decisions (especially recent ones), when will the composition of the court change enough to expunge today’s dumb decisions? I’m afraid it could be a while: Supreme Court life expectancies

  15. 15
    eric

    @1 and @2 – there are two reasons not to expect the slippery slope. One legally decent, the other hypocritically machiavellian.

    The legally decent one – Kennedy said in his concurrence that the reason he supported the majority is because the government already had an alternative system in place for providing free contraception coverage to the affected women. Because of that, this imposition on the religious rights of the employers was not the “least restrictive” solution possible, which is what is mandated by the constitution in the case of limits or religious (and speech) rights. If some organization wants to try and argue that covering vaccination or blood transfusion is against their religious beliefs, then to get past Kennedy they’re going to have to show that there is another working method already in place to provide their employees coverage for transfusions etc… No such system exists (given that the alternative for contraception didn’t exist until the ACA), so that’ll be a harder sell.

    The hypocritically machiavellean one – these five white catholic conservative judges are not interested in letting JW business owners take away transfusion coverage, letting KKK owners discriminate against black employees, or [make up another example here]. They are only primarily interested in carving out an exception for catholic issues such as abortion and contraception for women. I’m guessing that any other “not of their tribe” group that tries to use this rule to not pay for some service the judges actually like will get struck down; the judges will find some flowery way to say “wrong interpretation but our rule about contraception still stands.” Slippery slope assumes these judges will allow consistent rulings in other cases. I don’t think they have as much interest in legal consistency as they do in carving out a legal exception for their religious and political causes and saying everyone else must obey the standard rules.

  16. 16
    lochaber

    Someone should let these folks know that The Handmaid’s Tale was not a how-to manual.

  17. 17
    zmidponk

    It seems to me that, in the Hobby Lobby case, unless I’m reading this wrong, this court has simply decreed that part of the corporation (the owners) have religious beliefs regarding contraception that take precedence over those of another part of the self-same corporation (the employees), due to the RFRA and the concept of free exercise of religion applying to the owners but not the employees, and doesn’t seem to have actually given any reason at all why this is the case – it is just so because they said so (the nearest they got was saying that allowing the employees access to contraception was a ‘compelling government interest’ but that the HHS hadn’t shown that compelling Hobby Lobby to allow its employees to set up health insurance which included access to contraception was the least restrictive method of doing it). They have also decreed that this doesn’t create a slippery slope allowing corporations, whether they’re ‘closely held’ or not, to have religiously based exemptions to other laws, again, without actually saying why this is the case – they have simply said this is so because they said so.

    Also, the court has simply not addressed the fact that Hobby Lobby has actually got the science wrong. It claims that Plan B and Ella causes abortions, and thus falls foul of Hobby Lobby’s owner’s religious belief that life begins at conception, and thus abortion is murder. They don’t – they are designed to prevent conception, and the best evidence shows they have no post-fertilisation effect at all, so this decision actually means that, even if a religious belief is based on something that is factually incorrect, your employer could still have the right to impose it on you, even if you do not share it.

  18. 18
    celcus

    I think the way this is going to play out: You may impose your devoutly held religious beliefs so long as it only affects women.

  19. 19
    Modusoperandi

    zmidponk “…so this decision actually means that, even if a religious belief is based on something that is factually incorrect…”
    Now, look, it’s not the Supreme Court’s place to go through each and every “deeply-held religious belief” and protect only those that turn out not to right. If it did, it would decide to protect the ones that it decided were true, while waving away those it didn’t. Which is what happened. Shit.

     
    “…your employer could still have the right to impose it on you, even if you do not share it.”
    It’s a little thing called Liberty. Duh.

  20. 20
    Modusoperandi

    Correction: “to be right”

  21. 21
    lordshipmayhem

    My takeaway from the SCOTUS rulings on both abortion clinics and Hobby Lobby is that the United States is now officially a patriarchal, misogynist theocracy. Women don’t count, and can expect their pets to get better treatment and protection under the law than they do. Who’s next? Gays? Blacks?

  22. 22
    eric

    @17:

    this court has simply decreed that part of the corporation (the owners) have religious beliefs regarding contraception that take precedence over those of another part of the self-same corporation (the employees), due to the RFRA and the concept of free exercise of religion applying to the owners but not the employees

    Not quite right. The majority does not say that these are conflicting rights and that the employers’ take precedence. Both Alito and Kennedy say that since the government already uses a different solution that respects employers’ religious rights AND meets the government’s stated purpose (of giving contraception coverage to the employees), the government must use that solution here rather than restrict employer religious rights simply because its easier or cheaper.

    I think that’s still a crappy decision, because there is a substantial burden on employees’ time and effort with the alternative solution. Thousands or tens of thousands of employees now have to sign up for and manage two separate health care systems, rather than one. Surely their time and effort count more than the psychological angst of 5 owners (because that’s the maxiumum allowed in a ‘closely held’ corporation) who simply don’t want their corporaton providing IUDs or morning after pills.

  23. 23
    Pierce R. Butler

    eric @ # 15: … these five white catholic conservative judges …

    Clarence Thomas voted for women’s/workers’/Obama’s rights?

  24. 24
    Crimson Clupeidae

    Interestingly, the court specifies that only 4 of the 20 BC types covered supposedly meet the criteria of the religious exemption, based on what they litigants claim is their belief, yet the court simply granted a blanket exemption against all forms of BC. At the same time, the decision explicitly says that other things like transfusions are covered (no reasons, just because….), so they are being doubly disingenuous here.

    It’s pretty obvious when you put these two things side by side, they are explicitly carving out exemption for Catholic and catholic only ideology.

  25. 25
    zenlike

    But here again the ruling is very limited in several important ways.

    Huh?

    First, it applies only to closely-held corporations,

    50% of employees work for ‘closely-held corporations’.

    Second, the majority ruling makes very explicit that the ruling does not mean that a company can claim a religious liberty exemption from all kinds of other laws, or even for other forms of health care in their insurance policies, like blood transfusions or vaccinations:

    So it only affects the female half of the population.

    ‘Very limited ruling’ my ass.

  26. 26
    Modusoperandi

    zenlike “50% of employees work for ‘closely-held corporations’.”
    Yes, but 100% of the owners of closely-held corporations own closely-held corporations. This is especially important in cases like this, of for-profit businesses selling tchotchkes and Chinese-made crap to consumers.
     
    “So it only affects the female half of the population.”
    Talk about a strawman! The male half of the population also has to get coverage as a separate rider for their uteruses.

  27. 27
    Alverant

    The limited scope of the ruling gives special rights to one set of religious opinions over others which amounts to an establishment of religion.

  28. 28
    abb3w

    @2ish theschwa

    Why, other than special pleading, is this limited only to contraception?

    First, because at least for vaccinations, the government may be able to show more of a compelling public health interest. “Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” (Page 46 of the slip opinion, page 52 of the PDF.)

    And second… from what I’ve read in another discussion thread elsewhere, because it seems that early on in the case, a government lawyer stipulated that the contraception mandate created an actual conflict with the particular sincerely held religious beliefs of Hobby Lobby (and Connestoga). This effectively gave a free ride to Hobby Lobby, once that question was reached. However, if the government disputes that when other for-profit corporations bring cases, even contraception might not be a sure thing. While the ruling says it’s possible that other companies might be able to show that they shouldn’t cover blood transfusions, other companies contrariwise may have to fight to show that they also should be granted an exemption from contraception coverage.

    Nohow, “The most straightforward way of doing this would be for the Government to assume the cost” makes a general argument the “least restrictive means” part of the RFRA which seems difficult for the government in future cases which get that far.

    I’ll also note this ruling hinges on the RFRA not excluding for-profit corporations from its category of protected “persons”, which is something that could potentially be changed by simple legislation — though it’s politically absurd to expect from the current House composition.

  29. 29
    eric

    @24:

    the court specifies that only 4 of the 20 BC types covered supposedly meet the criteria of the religious exemption, based on what they litigants claim is their belief, yet the court simply granted a blanket exemption against all forms of BC

    Well, I think that’s probably less silly than saying “you can get a religious exemption for IUDs but not pills.” After all, some other religion could have a problem with pills or whatever.

    At the same time, the decision explicitly says that other things like transfusions are covered (no reasons, just because….), so they are being doubly disingenuous here.

    It’s pretty obvious when you put these two things side by side, they are explicitly carving out exemption for Catholic and catholic only ideology

    I agree that Alito is handwaving and that they won’t be consistent in the future, but instead they’ll just carve out an exception of what conservative catholics don’t like and leave it at that. However, both Kennedy and Alito did mention a reason why mandating BC coverage did not meet the ‘least burdensome’ standard while mandating transfusion etc… coverage probably would – because the government already has a system in place for making up the gap in coverage when it concerns BC. They just need to extend it to stores like HL.

    To show what they mean, let’s consider a toy example. A woman employee of a ‘no medicine at all’ JW non-profit wants coverage for both transfusions and contraception, but nothing else. Let’s say she’s got coverage of everything else through her spouse, so she just needs “point” coverage for those two services. Under current ACA, she can get a ‘rider’ coverage for the case of contraception, but she can’t for the case of transfusions because no such rider coverage is mandated by law. Health care corporations can simply refuse to provide such a rider. Because she can get the BC coverage, forcing employers to go against their religious beliefs to provide it is not a ‘least burdensome’ solution. However, since she can’t get transfusion coverage through ACA, forcing employers to provide it might be ‘least burdensome.’ I say might because Alito leaves the question open.

  30. 30
    CSB

    @25:

    50% of employees work for ‘closely-held corporations’.

    Do you have a link to the stats on that? The only number I’ve heard thrown around is that something like 90% of corporations fit the definition, but the number of employees would obviously be more relevant. The most relevant number, though, would probably be the percentage of employees who work for a closely-held corporation and would otherwise work for an employer to whom the Employer Shared Responsibility provisions apply (i.e., has 50+ full-time employees or the equivalent thereof).

  31. 31
    eric

    Now that I think about it, this conservative court’s ruling may have the ultimate effect of nationalizing birth control and contraception coverage. After all, if employers stop covering it, and the government mandates that insurers must provide it to everyone for free, that is pretty equivalent to saying the governmnet is going to provide you with it.

    That would be one heck of an unintended consequence. :)

  32. 32
    Chiroptera

    eric, #29:

    Hey! Don’t you know proper internet etiquett forbids you to read the actual court decision before you comment on it?

  33. 33
    magistramarla

    Question – Can the employees of HL and others like them bypass the employer-based insurance and go directly to the exchanges? If not, can a loophole be found to allow this?

  34. 34
    eric

    @33 – always. Now that we have ACA in place, you can always just forego employment based coverage and go to the exchange.

    However, from my limited experience shopping around, it will probably cost you more to get the same (or an equivalent) plan. Even with most employers giving you money back for “opting out” of their systems, you would probably pay more out of pocket trying to buy the same plan (or an equivalent one) on the exchange. I’m hopeful that will change, but for right now, female employees of HL are probably stuck with the crappy and ought-to-be-illegal choice of going without BC coverage or paying through the nose for different coverage that gives it to them.

  35. 35
    zenlike

    30 CSB

    @25:

    50% of employees work for ‘closely-held corporations’.

    Do you have a link to the stats on that?

    Well, this paper contains a cite.

  36. 36
    lochaber

    So…

    What are the reasons Hobby Lobby didn’t just cut their health coverage and pay the fines/penalties? (I know this would probably be a bit worse off then them offering only partial coverage, but it would avoid the Catholic-bias…)

  37. 37
    steve84

    Anyone who thinks this ruling will stay limited is very naive.

  38. 38
    leni

    I wish, but know it will never happen, that every female Hobby Lobby employee would walk out the door tomorrow and never go back. Or just never show up.

    I wish every employee would. There’s probably more than one man working there who’s wife has an IUD on his insurance.

    .

  39. 39
    SallyStrange

    I don’t see why the allegedly limited nature of this decision is comforting. The limitation is a result of either the court’s endorsement of Catholic beliefs over other religious beliefs, or its endorsement of treating women as second class citizens when it comes to both core, or both. There’s no reason to think that SCROTUS (Alito, Scalia, Thomas, Kennedy, and Roberts–the Supreme Court Republicans of the US) will limit themselves in their efforts to promote misogyny and Catholicism to this one case alone.

  40. 40
    CSB

    @35:

    Well, this paper contains a cite.

    Thanks, I appreciate it. The paper’s from 2002, and doesn’t really address the question I have of how many of those employees fit into the “50+ full-time” category, though. That said, though, this is very much a “one is too many” kind of situation as far as the ruling being a bad thing goes.

  41. 41
    lofgren

    However, both Kennedy and Alito did mention a reason why mandating BC coverage did not meet the ‘least burdensome’ standard while mandating transfusion etc… coverage probably would – because the government already has a system in place for making up the gap in coverage when it concerns BC.

    While it is less burdensome on Hobby Lobby’s owners for the government to mandate workaround and patches in order to accommodate their religious preferences – which is what we are talking about here, a law that was only required because the contra-factual religious convictions of a small group of people was about to do serious harm to their employees during window between when they refused to offer coverage and when the supreme court made their decision – it’s obviously not the least burdensome way to accommodate the religious (and, not coincidentally, scientifically accurate) beliefs of their employees, nor of all of the rest of us, being as it’s obviously an additional burden on taxpayers.

    The People went out of the way to protect themselves from Hobby Lobby’s delusions and religious beliefs. And because they did, therefore Hobby Lobby’s delusions and religious beliefs are protected by the first amendment. If We had not implemented laws to protect ourselves, then Hobby Lobby’s beliefs would not be protected. Doesn’t that seem completely out of whack to anybody else?

    It’s like saying that because we have laws affirming a person’s right to self-defense, human sacrifice is perfectly OK. After all, the least burdensome way of protecting people from human sacrifice is to give them the right to defend themselves from it.

  42. 42
    gerryl

    I cannot understand why the government didn’t argue that employer subsidized health insurance is a form of compensation and is earned by the employee. Employers don’t get to dictate to employees how they use the compensation they earn through their work. Hindu employers cannot restrict their employees from using their wages to buy meat. Muslim employers cannot insist employees use other funds if they want to buy pork. Could an employer who provides life insurance or a 401k prevent an employee from naming someone who violates the employer’s ‘deeply held beliefs’ as a beneficiary?

    During the last presidential campaign the Rs thought it was funny to mock Pres Obama with the “You didn’t build it” meme. Maybe the Ds should start shouting “You didn’t earn it!” to mock this attitude that compensation is somehow a gift from benevolent corporations.

  43. 43
    Modusoperandi

    gerryl “Employers don’t get to dictate to employees how they use the compensation they earn through their work.”
    Not yet. [thunder clap, malevolent laughter]

     
    “Hindu employers cannot restrict their employees from using their wages to buy meat. Muslim employers cannot insist employees use other funds if they want to buy pork.”
    Of course they can’t. We can’t allow other peoples’ crazy religious beliefs special privileges. Mine has already got that, and frankly mine don’t need the competition.

  44. 44
    matty1

    I’m guessing Ed used the word narrow in the sense that it could have been broader, not that it was the narrowest possible option. Eg. A right to refuse to pay for any insurance rather than singling out contraception or including all corporations rather than just ‘closely held’.

  45. 45
    matty1

    Here’s another point I came across. Buying health insurance that excludes contraception is now an exercise of religion. Does that mean that when someone in HL financial department signs the paperwork they are being made to exercise a religion as a condition of employment? If they refused and got fired would they have a case that the sacking was illegal because it was religious discrimination?

  46. 46
    eric

    lofgren:

    it’s obviously not the least burdensome way to accommodate the religious (and, not coincidentally, scientifically accurate) beliefs of their employees, nor of all of the rest of us, being as it’s obviously an additional burden on taxpayers.

    IANAL so the specific and detailed description of what the law considered “least burdensome” is beyond me, but one of them (Alito or Kennedy, can’t remember which) does cite case law that says a cost to government is a consideration, and that there is a reasonable limit to how far the USG should bend to accommodate a religion, but precedent is strongly on the side of some religious acommodation.

    I suspect the legal scholars really mean something like a ‘rational person’ test here; the least burdensome accommodation is probably something that a rational person would think doesn’t cost too much tax money but nevertheless is an honest try at accommodating various religious practices.

    While precedent doesn’t trump the constitution, it’s a consideration. And we have many many years and cases of government accommodation of religious practices in precedent.

    The People went out of the way to protect themselves from Hobby Lobby’s delusions and religious beliefs. And because they did, therefore Hobby Lobby’s delusions and religious beliefs are protected by the first amendment. If We had not implemented laws to protect ourselves, then Hobby Lobby’s beliefs would not be protected. Doesn’t that seem completely out of whack to anybody else?

    Obama didn’t create a workable exception for HL – the admnistration obviously thinks HL should not get an exception. ACA created a workaround for religious charities, which have traditionally been given greater accommodation/latitude in hiring, operations, etc… Alito and Kennedy are saying the government should expand that program to include closely-held businesses.

    GerryL:

    I cannot understand why the government didn’t argue that employer subsidized health insurance is a form of compensation and is earned by the employee.

    I agree. I also don’t understand why the government didn’t make a standing argument that the health care providers such as Aetna, Blue Cross, and Kaiser must bring the case, because it’s they that the government is forcing to provide BC to women. We can make an analogy to gay rights here: if there is any religious or legal issue in a clerk having to sign a gay marriage certificate (and I don’t think there is, but roll with me here for a moment), that suit should be brought by the clerk who is forced to sign the licences. It should not be brought by some straight couple who must also purchase a marriage license and is offended that the service they are purchasing is also given to gay people. That makes no sense; it is too indirect. Well, think about this situation: Aetna is like the clerk, and HL is like the straight couple. Yes, they are forced by law to buy the service if they want to be married, but they are not the ones providing the service. So why should the law give them standing?

  47. 47
    groucho

    Shorter version of the decision:

    You don’t have to obey they law that applies to everyone else if it might make your invisible friend mad at you, so long as the law is about lady parts and you have the same invisible friend we have.

    Sounds about right coming from five conservative Catholics.

  48. 48
    rork

    Another short version:
    Discrimination is OK if the government creates a workaround.

    Question: will the cost of the additional coverage be a positive or negative number or zero? As you may know, women using birth control have fewer pregnancies, which reduces costs.

  49. 49
    eric

    Question: will the cost of the additional coverage be a positive or negative number or zero? As you may know, women using birth control have fewer pregnancies, which reduces costs.

    Well, AIUI the current health insurance supplement mandated by ACA for religious nonprofits provides free contraception. Now I can’t see any insurance company ever supplying it for a negative cost – if they did that, every eligible person in the US would sign up for it, just to get their monthly check. So I think it’s safe to say that the cost to the employees signing up for it will be $0. As for what that supplementary service costs the health care provider, I don’t know whether it’s positive, negative, or zero.

  50. 50
    Crimson Clupeidae

    By the way, I’ve just recently been ordained as a high priest of Quetzalcoatl.

    ….I’m hiring. >:-)

  51. 51
    Deen

    a closely-held corporation is one in which more than 50% of the company is owned by five or fewer people

    Which makes me wonder, do these five owners have to be flesh-and-blood people, or would a corporation-as-people do too? Is it still possible under current legal precedent to make the distinction?

    Of course, even without that, there are plenty of other ways a company could restructure to benefit of the new rights that being a “closely-held-corporation” now give you, for example by outsourcing as much of their employees to sub-contractors, who could then be closely-held businesses, even if the main company can’t. They’re already doing that sort of stuff to dodge all sorts of obligations to their employees already anyway.

  52. 52
    Brent Jernigan

    I don’t see how the court’s decision addresses the “burden” the law puts on Hobby Lobby (not that I agree that it does, but…). If “providing insurance” that contains provisions for objectionable birth control is the problem, and the workaround is that they provide insurance which the government then directs the insurer to include the objectionable birth control, the people who choose to access it are still getting it because Hobby Lobby “provides” insurance. The employees wouldn’t be able to get it without Hobby Lobby providing insurance in the first place.

    Surely, God would see through such a cheap trick as that!

    Of course, the whole mess is one big ball of illogical sophistry contradicting scads of previously issued rulings. Personally, I’d like to see Alito and company square their contradictory claims from 2001.

    “…linguistically speaking, the employee and the corporation are different ‘persons,’ even where the employee is the corporation’s sole owner. After all, incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Supreme Court Decision in CEDRIC KUSHNER PROMOTIONS, LTD. v. KING, 2001

    Versus

    “…the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.” BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. HOBBY LOBBY STORES, INC., 2014

    Which is it, Sammy?

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