I Pit HOBBY LOBBY

The BBQ Pit
241

Yeah, the laws are invalid ab initio. So if a criminal law was ruled unconstitutional (say the anti-miscegenation laws) then anyone convicted of breaking that law would be freed and their records expunged.

My favorite loophole is the one where you can string up a thread along telephone poles and call everything inside that thread your curtilage or something like that. I asked them why they don’t string a thread around the vatican and call everything on the Italy side of that thread your curtilage, apparently this was a bridge too far.

In what way does post bronze age technology justify this work around?

Assuming there is a valid policy rationale for covering birth control pills, then I fail to see the difference between enforcing drug laws on the Rastafarians and enforcing health care laws on Hobby Lobby.

If I have a religious objection to blood transfusions, etc. can I except myself from having to cover that in my mandated health care?

I don’t see why a closely held corporation should be treated any differently than a sole proprietorship in this analysis.

You are making them serve as a conduit to the provision of the offensive goods and services. And yes everyone recognizes that noone is forcing the church to cover birth control for nuns, the question is whether a private corporation can exercise its first amendment right to disregard an otherwise valid law.

There is a pretty low limit on a corporation’s ability to deduct for charitable giving. And if there weren’t, they would have to donate all their profits to escape taxation entirely, wouldn’t they?

Then isn’t it clear that you are observing the CEO’s conscience and not some ghost-in-the-machine corporate conscience?

Can a corporation run by Jehovah’s Witnesses decline to cover blood transfusions? Heck, can a sole proprietorship owned by a grand poobah of Jehovah’s Witnesses decline to cover blood transfusions?

You make a good point that the religious freedom of the corporation is not generally greater than the freedoms of its employees.

the corporate veil generally requires a lack of identity between the corporate owners and the corporation. You seem to be infusing the corporation with the identity and beliefs of the corporate owners.

242

Well, the former is a negative mandate (“don’t do this”) and the other is a positive - “you must do this.” I can’t think of any positive analogies. Holding parents criminally culpable for failing to obtain lifesaving medical care for their children, maybe.

243

Yes, I remember blue laws. Usually, the only stores that were open on Sundays were convenience stores.

Around here, a LOT of non-chain restaurants are closed on Sundays. We have a lot of Chick-Fil-A and Hobby Lobby stores, but we also have other fried chicken fast food joints and at least one other hobby chain (Michael’s) which are open on Sundays. Most non-chain salons are closed on both Sundays and Mondays here.

244

True. But both as a general principle, and a matter of federal statute, the “right to religious expression,” is quite a bit stronger than the “right to act in racist ways/”

It depends on the purpose and organization of your corporation, and in what way your corporation’s preferred actions are supposedly infringed by the Civil Right Act.

245

Why not?

Greenpeace is “infused” with the identity and beliefs of its owners.

So is the New York Times, for that matter.

246

Can a for-profit corporation with 21,000 employees advance a free exercise claim on its own behalf? Can it advance one on behalf of its owners if the corporation is closely-held? Can any for-profit corporation be a “person” for purposes of the federal Religious Freedom Restoration Act, and if so are the burdens upon religious practice created the contraceptive mandate (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that compelling governmental interest?
Can a Christian Scientist employer deny most types of coverage altogether? what about religious exemptions to vaccines, or treatments based on stem cell research? What about a publicly held company—which of its shareholders’ beliefs can be protected?

This “a company is a person” nonsense has gone quite far enough. When is Illinois or Texas going to EXECUTE a company? Or at least lock one up? When that happens, I will entertain the notion that a company is a real person, with all the rights and duties of a real person. Until then, it’s all bullshit to me.

247

That’s fascinating.

However, a search reveals that no federal court decision in modern times has been based on the reasoning, “It’s all bullshit to SteveG1.”

So that’s not really something I factor in to an analysis of what the Court’s decision might be.

The Tenth Circuit did not find this concept “bullshit.” Hobby Lobby Stores v. Sibelius, 723 F.3d 1114 (2013). As previously cited. Neither did the Seventh Circuit. Also as previously cited.

The Third Circuit agrees with your result. Conestoga Wood Specialties Corp. v. Secretary of the U.S. Department of Health & Human Servs., 724 F.3d 377 (3d Cir. 2013). But even they di not reach their decision by dismissing the opposing argument as “bullshit.”

Your reasoning is born of wallowing in ignorance. A corporation is person within the meaning of certain laws. And not within the meaning of other laws. This mouth-breather idiocy that since you cannot imprison a corporation, it has no right to free speech, or free exercise of religion, would be embarrassing in any forum where readers cared about solid argument, grounded in factual understanding.

248

Wait, are you saying that the right to peaceably assemble creates the right to incorporate? If not, then how is this relevant? As a non-lawyer, it seems very straightforward that the law could easily lay out privileges and restrictions of corporations with no constitutional interference.

249

Different companies, but we didn’t mind the reflected glory when the movie came out.

250

I think people make too much of a distinction between forbidding certain behaviour and requiring certain behaviour.

Who owns Greenpeace? Greenpeace’s purpose is to do what it does, just as the catholic church does what it is meant to do.

Corporations are not supposed to be the alter egos of their owners and their purpose is not to promote some religion or religious beliefs (Apple fanbois notwithstanding), this sort of infusion may not be enough to pierce the corporate veil but the identity of the corporation is supposed to be separate and apart from the identity of the owners. If you can’t baptize a corporation, if a corporation cannot go to heaven, then I wonder if a corporation can have sincerely held religious beliefs.

Frankly, I don’t think a sole proprietorship could do what Hobby Lobby wants to do here.

This is a law that is neutrally applied for which there is a compelling state interest. Should a business owned by Jehovah’s Witnesses be able to opt out of covering blood transfusions for its employees?

Right now there is a kitchen sink approach towards Obamacare and people are latching onto the most ridiculous theories and inflating their plausibility just so they don’t have to admit its fucking over. If they want to get rid of Obamacare, they are going to have to start winning some elections at the state and national levels. The problem is you can’t gerrymander states for senate seats and there is only so much you can gerrymander the electoral college before even Alito and Thomas start rolling their eyes.

251

If I were a Supreme and had to rule on this one my reasoning would be a little different.

All these corporations pay their people with money or an instrument that can be converted to money. That money can be used for lots and lots of things that might run afoul of the religious beliefs of the guy that signs the paychecks.

But so what?? Once that money has been given in exchange for something, such as a weeks worth of service to the corporation, the company no longer has an interest in it. That money now belongs to the worker, not the company. It’s not their money anymore.

So I would argue that once the benefit of an insurance policy has been given to the worker as part of a compensation package then the company has no legal interest in what goods and services accrue to the worker through that policy. The company may not like or agree with what their worker receives via their insurer but it’s none of their business, just like it’s none of their business what the employee buys with his paycheck.

252

keep in mind that to survive strict scrutiny, it takes more than a compelling interest. The law also has to be the least restrictive means for furthering the compelling interest. Since the government could very easily give people free birth control using taxpayer dollars, the regulation is not the least restrictive means. It restricts a 1st amendment liberty unnecessarily.

Some have argued that for profit businesses don’t have religious freedom, but that’s facile reasoning. If a church, which is not a person, has religious freedom, then so does a business. To claim that persons lose their religious freedoms when operating in the business sector is basically to say that religious people may not run businesses, since their freedoms can be infringed in regards to the business at any time for any reason. Companies could be forced to open on Sunday, for example, or Jewish restaurants could be forced to serve pork, simply because the government decided it should be so.

253

The contraception mandate is not a statute. It’s a regulation. Statutes>regulations.

Plus, by exempting churches, the administration has already conceded the religious freedom issue. They are simply making the claim that the act of seeking a profit nullifies an organization’s 1st amendment rights, which is not tenable.

These are businesses founded and run based on the owners’ religious values. The idea that businesses should eschew moral values and just follow whatever the letter of the law is is one I doubt even atheists support as a general principle.

254

First, for everyone’s benefit:

A reasonably good place to start.

That argument is in fact being made but the counter-argument is that you are not just saying that I have to compensate my employees in some fungible item, I have to compensate them with something I find objectionable. Lets say that we passed a law that required you to pay people in part in guns and ammo (if they so elected) and you had a religious objection to the proliferation of guns in society. Do you think that I could force you to pass out guns even though you had a religious objection?

Why would strict scrutiny apply here again?

Not at any time for any reason, no. There is some real estate between “strict scrutiny” and “do whatever the fuck we want to regulate commerce”

And what is the compelling state interest in those things? There might also be some “targetting” going on there.

There has always been a pastoral exemption and they “enjoyed” religious exemptions from some labor laws, did we extend this pastoral exemption to lay employees while I wasn’t looking?

If a business is run on the owner’s religious values of smoking peyote and marijuana, we can still send them to jail for selling peyote and marijuana, can’t we? Or are your religious beliefs the only valid ones?

So can a business run by jehovah’s witnesses decide that they don’t want to cover anything that might require blood transfusions (like almost all major surgery)?

255

Because the regulation forces people to act against their religious beliefs. Any law that infringes on 1st amendment rights has to survive strict scrutiny.

Yes, there’s rational basis, but I don’t see how you lower the standard to rational basis when we’re dealing with the 1st amendment. Rational basis is what applies to regulations of commerce that do not impact basic constitutional rights.

I’m not sure the state can even prove a compelling interest in free contraception. That’s a policy preference based on the political needs of the 2012 election. There is no contraception access crisis needing a solution, plus the government has other means of solving the problem, such as paying for contraception through tax dollars.

That does not mean that employers do not have religious freedom, or that the government can force them to violate their beliefs in the name of labor law. Until now, nothing was asked of any religious employer that would force them to violate their beliefs. There is no religious objection to overtime, or equal rights(even for gays), or safety regulations, or the right to organize. Or even the to require health insurance. There is, however, an issue with contraception in the catholic church, which is going to cause Catholics some conscience dilemmas. The Obama adminstration’s attitude is “Suck it up, you’re in a profit seeking business, your morality doesn’t matter.” Which again, is also untenable since Obama’s one of those guys who pontificates on business being about more than profits. So apparently, HE is the decider of what constitutes morality in the business sector.

My religious beliefs don’t involve a problem with contraception. For my people, the main challenge is Sunday laws. Also, there is a wide gulf between preventing me from doing something and forcing me to do something. 90% of religious law, no matter what your religion, is “don’t”. There are very few things that you must do to avoid the wrath of your deity. Rastafarians don’t HAVE to smoke marijuana anymore than Jews HAVE to drink wine.

In that case, the government can probably demonstrate a compelling interest. Contraception, on the other hand, is not a medical necessity, and even if you argue that it is, even unemployed people don’t seem to have a problem getting their hands on it.

There’s one more distinction: Catholics believe contraception to be morally wrong, no matter who is doing it. Witnesses, as far as I know, only believe blood transfusions are wrong for Witnesses, just as Jews only believe pork is wrong for Jews to eat. There aren’t Witnesses protesting outside hospitals or Jews protesting outside meat markets.

256

The First Amendment covers more than just freedom of religion; it also covers freedom of association. I’m fairly sure that when the Civil Rights Act was passed, there were business owners who filed court cases stating that the Act violated their freedom of association by forcing them to serve non-white customers. How come that argument didn’t hold up?

257

Because the 14th amendment empowered Congress to pass laws guaranteeing the civil rights of the citizenry. There is no civil rights issue at stake with the contraception mandate.

Secondly, we’re talking about a mere regulation, which gets a lot less deference from the courts than laws.

258

I’d also note that the “government has already been allowed to do X, therefore it’s allowed to do something similar” is a common argument, but usually wrong. In fact, it’s more likely that the government’s attempt to push the envelope a second time will lead to courts restricting the old uses of the power as well as the new use. Which we saw with campaign finance reform.

Although this country does have freedom of association, the idea of a businessman turning away customers on the basis of race shocked the conscience, and 1st amendment or no 1st amendment, the law was unlikely to be struck down. Unwillingness to pay for free contraception doesn’t shock anyone’s conscience, even those who support it. It’s a mere policy preference, not a moral imperative.

259

The Metroplex is a patchwork of municipalities–many with differing liquor laws. On a visit, me & my party were informed that a convenience store sold no beer because it was in a dry area. The owner was Muslim & slightly smug about running a booze-free establishment. The Godly folk who originally declared that area dry would be somewhat surprised by its current demographics.

Most little towns near Houston were gobbled up long ago. I live near the Heights–a trolley suburb that was annexed over a century ago–but retained the right to stay dry. A Pakistani family realized their convenience stores were just over the line & there was a market for booze. So they have better than average wine sections & really good selections of craft beer & microbrows; and they opened a nice little liquor store. They were cheerily wishing everybody Merry Christmas as they rang up their orders, last season…

I don’t care about small business owners expressing their religion. But a big picture of the Virgen de Guadalupe or Lord Krishna is more tasteful than that sodding fish—which means that Christians are being persecuted. They can post any business hours they like–without editorial comments, please.

While our legal brains figure things out, I’ll just make my extremely rare crafting purchases elsewhere…

260

Um… because federal law explicitly says it does. 42 USC § 2000bb.