The 14th Amendment, like the 1st, restricts government action, not the actions of private businesses. As far as I know, the Civil Rights Act was justified on the basis of regulating interstate commerce, not the 14th Amendment. The landmark case Heart of Atlanta Motel v. United States was argued on those grounds.
(I should point out that I’m in favor of the Civil Rights Act. I’m just playing devil’s advocate, otherwise known as Ron Paul. 
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I don’t think freedom of speech is subject to strict scrutiny. Thats in the first amendment right?
Hey, YOU’RE the one that said:
“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.”
YOU said that, not me.
I happen t think that you can’t force a doctor to perform an abortion, you can’t force a priest to perform a gay marriage, you can’t force a pharmacist to dispense morning after pills but you can’t force someone to provide comprehensive health care to their employees even if they object to some individual elements of that insurance coverage.
It wasn’t a political policy preference. It was one of the things on a long list of things recommended by a non-partisan panel of health experts that defined what constituted comprehensive health insurance coverage. Letting people cherry pick parts of that laundry list to ignore because of personal religious beliefs would (in the words of Anthony Scalia) make each man a law unto himself.
YOU said that Obama already conceded the religious freedom issue by exempting churches. So what did he concede?
Do you know how we decided what to require in health insurance policies? You think Obama sat there and told people that contraception had to be in there? The fact of the matter is that contraception is a standard element of comprehensive health insurance and THATS why its in there.
So you don’t like the example? OK, how about a jehovah’s witness that doesn’t want to cover blood transfusions. Or how about some other religious nutjob that doesn’t want to cover any illnesses caused by “sins” like gluttony, smoking, drinking, drug use, etc.
Now, what if they told me that by law, they had to charge me exactly the same amount for the inferior coverage. If I’m not paying any more money for the plan with the contraception than the plan without the contraception then I’m just imposing my religious beliefs on my employees, aren’t I?
They don’t have a problem getting their hands on antibiotics either. So maybe we shouldn’t cover that.:dubious:
Yeah, thats what we call imposing your beliefs on other people. Our democracy isn’t really keen on having the government facilitate that sort of thing.
Have you heard of Griswold v Connecticut?
It depends. This might be what we call a legislative regulation, it is not an interpretation of the law, the agency isn’t reading the law and telling the world how they intend to interpret it, it is an example of the legislature delegating legislative power to fill out the details of a law.
Huh! Would you look at that. So is this law more like forbidding the use of peyote or requiring people to pay taxes that are used to fund wars?
Forbidding the use of peyote was the issue in Employment Division v. Smith. Taxes for war was the issue in Wisconsin v. Yoder. But 42 USC 2000bb, while it explicitly mentions those cases, does not rest on either of those cases’ premises. Congress enacted the RFRA to say, inter alia, that all subsequent Congressional acts that infringe religion, unless they explicitly exclude themselves from the reach of the RFRA, are subject to the strict scrutiny standard of review. 42 U.S.C. § 2000bb-3(b).
So it’s unclear from your comment if you understand, now, why strict scrutiny applies. Do you?
That seems like a rather heavy-handed encroachment on the power of the judiciary.
Yoder was about truancy. I think you’re thinking about Lee, which was about social security taxes but talked about taxes for war.
What does?
Could the Monday Supreme Court decision not to hear the Liberty University challenge against Obamacare be an indicator as to where they may go with the Hobby Lobby case?
I have a lot more sympathy for the rights of Hobby Lobby employees than I do for Hobby Lobby management. These people signed on to provide a service for this company and receive compensation. If they spend their free time going to church every night or engaging in wild orgies, it is none of their employer’s business. So management doesn’t like contraception. Fine, then management doesn’t have to use it. For them to insist that the insurance that they provide doesn’t provide contraception is an infringement on the rights of their employees. It’s twenty fucking thirteen, contraception is here to stay and it’s time these fuddy duddies grew up and dealt with it. If these clowns are granted the right to impose their religion on their employees, what next? Would a Jehovah Witness boss have the right to insist that their employees have no access to blood transfusions? Would he have the right to fire employees who donate blood?
Why do I (as an employee) have a right that my employer provide me any particular form of compensation?
Also, the JW’s and the blood transfusion has become an incessant trope, so I have to ask (since I’m unfamiliar with their theology): is there any reason to believe that a Jehovah’s Witness would object to facilitating another having a blood transfusion?
You as an employee have a right to buy the prescription drugs that you and your doctor think you should have. For an employer to say “oh, no, THESE drugs violate MY morality, YOU can’t have them” is imposing his religion on you.
I don’t know if a JW would obect to others having a transfusion, but if they did, would they have the right to insist that you don’t get one?
42 USC § 2000bb, cited by Bricker above, requiring that strict scrutiny be applied to all neutral laws burdening religion.
:smack:
I think you’re confused about what the employer is saying in this scenario. He’s not saying “YOU can’t have them;” he’s saying “I won’t help pay for them” (or, more accurately, pay for a plan that pays for them). Similarly, our hypothetical JW isn’t insisting that I don’t get a transfusion, he’s insisting that he not foot the bill for it. (I ask about the nature of their beliefs, because I understand it to be an extension of the kosher rule against eating blood. It doesn’t matter for the purposes of this discussion, but there would be a difference, for example, between a religious belief that I can’t eat beef and one against the slaughtering of cows. The latter belief is more likely to prevent me from buying you a hamburger).
The employer is not asking for the ability to prevent me from doing something (which it shouldn’t have) or even the right to lobby me not to do it. It’s asking not to have to pay for it. I’m not suggesting that the employer should win. I’m just not sure how the employee’s rights are being violated. Just because some employees get compensated in the form of coverage for blood transfusion?
I don’t see it. RFRA operates not unlike the Dictionary Act. It provides an default interpretative principle for statutory interpretation. We talk about it in terms of constitutional doctrines (like strict scrutiny), because it applied a previous constitutional scheme (and took its statutory language from those cases), but it’s really Congress just telling courts what it means in the statutes. Providing guidance on how to interpret the text of a statute is hardly legislative encroachment.
Let’s go a step further, suppose the Hobby Lobby ayatollah wins in court, would he then have the right to insist that you not buy contraception even on your own? After all, you’re taking money that was once his to buy it. Or would he have the right to refuse cancer treatment on the grounds that your cancer is the will of God and you shouldn’t fight it?
In my opinion, Hobby Lobby is in the wrong and if they lose their case and fold their business rather than give their employees complete health care coverage, I say good riddance.
No. While it’s true that Congress does not have the power to supersede a Supreme Court decision interpreting the Constitution (City of Boerne v. Flores), they certainly have the power to change judicially-created rules that are not specifically mandated by the Constitution. Carlisle v. US, Vance v. Terrazas.
No.
This hypothetical glosses over a kind of key point: once you’re paid, the money is yours. There is nothing in this argument that remotely suggests that anyone is arguing for a right to dictate what you do with your money – what Hobby Lobby and the Kortes demand is the right to dictate what they do with their money.
It’s possible that as a liberal, you reject the concept of personal property, and believe so strongly in a single communal pot into which all contribute according to their ability and draw from according to their need, and so are unable to comprehend this distinction. Nonetheless, the distinction exists.
Of course not. If only becuase the burden on the employers religious rights is increasingly diminished and the societal interest in my ability to spend the money on what I want is increased. I don’t have the right to make my Methodist employer pay me in Lotto tickets, but he has no right to prevent me from buying them when he pays me in cash. It’s not a totally unreasonable balance, actually.
But while the question of whether or not the government can compel you to do something is unclear (and interesting), I was primarily taking issue with your claim that the employees had the right to compel their employer to provide compensation in a certain form.
But the applicable level of scrutiny in First Amendment cases is mandated by the Constitution. In Carlisle, the Court was dealing with the rules of procedure, which are clearly not constitutional imperatives. In Vance, the Court was require to defer to the foreign policy branches.
I like Falchion’s explanation a bit better, but I think it’s misleading to analogize review for constitutionality to pure statutory interpretation.
So I’m not sure what you’re saying here. The Hobby Lobby case isn’t a First Amendment case (I mean, Hobby Lobby does claim a First Amendment issue, but I don’t think it’s a winner; in any event that’s a seperate issue).
And I guess I’m not sure what you think is “misleading.” Something I said? Or the fact that Congress provided statutory protections that invoked constitutional language?
Of course, this is why we have courts to resolve cases of conflicting rights. I simply maintain that your right to a standard level of health insurance is independent of and superior to the employers’ “right” to pick and choose which coverages do and don’t fit their own particular version of morality.