It’s been mentioned that Hobby Lobby could simply choose not to offer any health insurance to its employees. Of course, if they did that, the Affordable Care Act would require them to pay a tax penalty.
So, what if their response was to protest that they were being taxed for exercising their Deeply-Held™ religious beliefs? A tax on their faith? Nay, a tax on their very souls! Nothing more un-American could scarcely be imagined! :eek:
The government, in turn, would likely reply that they were simply being taxed for not providing health insurance, and that their reasons for not providing it were irrelevant.
I suspect that argument would be one the government would win. All the judge would have to do is pick up a quarter and say, “Whose image is this?”
I rather like this example. Having said that, I think it’s generally on the proponent of a slippery slope argument (which would include me, in this case) to provide an example of someone attempting to do whatever it is they’re warning people about. Abortion and contraception, it seems to me, might be sui generis in this instance. We know, of course, that Jehovah’s Witnesses reject certain types of medical care but I’m not aware of any JW businesses that refuse to cover it for others.
That’s a decision from 1990. The claim at issue current is based on the RFRA, which was passed after 1990.
So I doubt he’s referring to that, because he’s not nearly stupid enough to try to claim Scalia is somehow a hypocrite for deciding a 1990 case on 1990 law and deciding a 2013 case on law that exists in 2013. Try again.
Well, yes I suppose the judiciary is part of the government.
I keep forgetting that this is about the RFRA, everyone keeps talking about the issue in broader terms. So in the absence of the RFRA, Hobby Lobby would have to go pound sand, right?
I think abortion and contraception is sui generis from the perspective of the young lady who wants to have an abortion or use contraception. There is no other issue that is quite like being told you have to carry a baby you don’t want for 9 months and then either keep it and potentially derail your life or give it up for adoption and feel like you abandoned your child instead of just taking a pill that will prevent a microscopic combination of your egg and some guy’s spunk implant itself on your uterus. From the religious fanatic’s perspective there are all sorts of things that people think god commands of us that are pari passu with the command not to use contraception.
That doesn’t seem like a workable standard. “Free speech for press only” “Am I press?” “I don’t know, say something, we’ll prosecute you, and see what the court says.”
Probably.
The First Amendment argument would go something like: ** This isn’t actually a neutral and generally applicable law since it is full of exemptions for favored religious groups (e.g. the Amish), small employers, and so forth.
Smith distinguished (rather than overruled) *Sherbert *(and others) on the basis that those also had exemptions built into them. Therefore, when a law isn’t “generally applicable,” it’s governed by the pre-Smith strict scrutiny test. **
If you want to read a good discussion of how this would work, I would commend Alito’s Third Circuit opinion on Muslim police officers and beards (I think it’s FOP v. Newark). That being said, I’m not sure that it’s a winning argument in this context because the ACA has categorical exemptions (under 50 employees) and not individualized exemptions, so I think it it’s probably a losing argument.
Scalia’s opinions are constructionist (even if he claims that they’re textualist). Meaning that his opinions are based more on laws that are centuries old than stare decesis.
How do you define constructionist and textualist? It would seem to me that basis the opinions on the laws instead of stare decisis is a rough approximation of the definition of textualism (although, Smith doesn’t really purport to be textualist at all, it’s more of a common law style application of general principles).
Looking at Scalia’s rulings in items like human rights and his opinions come from the constructionist side. He claims that the constitution does not address these at all. (United States v. Virginia for instance where he said “The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law”). He can clamour all he wants but the textualist argument fails when it comes to his opinions on 14th amendment matters and he’s looking at the exact text there. (Thus bringing me back to the difference between constructionist, someone reading the law as being exactly what it says it is vs textualist being a person who understands that using a cane can mean walking with a cane).
I think I need some more examples to follow you. I think you’re saying that constructionism is more literal (think Hugo Black’s “Congress shall make no law” means “make no law”) while textualism allows for a broader interpretation (but, of course, not intentionalism). I mean, there are a number of ways to read “use a cane” that would be textualist (and I don’t know what the “constructionist” reading would be).
And then it goes on to use quotes from Scalia where he claims to be a textualist:
[QUOTE=Scalia]
The phrase “uses a gun” fairly connoted use of a gun for what guns are normally used for, that is, as a weapon. As I put the point in my dissent, when you ask someone, “Do you use a cane?” you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway.[4]
The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated-a compatibility which, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest. Green v Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) Scalia, J., concurring.
Even if we were to assume, however, contrary to all reason, that every constitutional claim is ipso facto more worthy, and every statutory claim less worthy, of judicial review, there would be no basis for writing that preference into a statute that makes no distinction between the two. We have rejected such judicial rewriting of legislation even in the more appealing situation where particular applications of a statute are not merely less desirable but in fact raise “grave constitutional doubts.” That, we have said, only permits us to adopt one rather than another permissible reading of the statute, but not, by altering its terms, “to ignore the legislative will in order to avoid constitutional adjudication.”
[/QUOTE]
The problem is, Scalia is a bit of a textualist when it behooves his personal opinion but for the most part on human rights, he falls along the constructionist pattern.
In this post, we see Bricker use his patented “lawyer-speak” to split a hair approximately the size of two atoms and try to make a point based on that. Look, you assshitter, barring time travelers from the future or a miracle from god, that fetus was dead. There was no way given modern technology to save the life of that fetus. What’s next, wanna split hairs over Terry Sciavo?
I understand (and am sympathetic to) Scalia’s “original public meaning” style textual argument. What are some examples of being “constructionist” in human rights cases? (it seems to me that a constructionist is always a textualist, even if the reverse isn’t so; so I don’t know how being a constructionist makes you not a textualist in some situations.).
Freedom of the press for the press. Other commercial enterprises can have commercial speech. A corporation does not have natural rights the same way that people do.
God’s will dude. To these people, there is a difference between a fetus that is doomed to die and a dead fetus. To them, you can no more kill a doomed fetus than you can shoot an AIDS patient in the 1980’s, even if doing so would save some other life.
Hang on, now. If this isn’t a Constitutional issue, but is solely based on the Religious Freedom Restoration Act, then how does that work? How can an act of Congress restrict Congress’s power to pass other acts? Does the Supreme Court declare Obamacare… uncongressional?
Can I shoot a terminally ill cancer patient and be charged only with “discharging a firearm within city limits?”
No. Because someone who is definitely going to die is not spoken of the same way as someone who is dead. Nor are they treated the same way under the law.
“The Roman Catholic church does refuse to abort an already dead fetus…” was the claim made. No amount of hopeful twisting, or handwaving claims of hair splitting, transforms that into a claim about live but doomed fetuses.
I take it you’re asking this question without actually reading either law. Who can blame you?
In simple terms, the RFRA says, “Any future law must either explicitly note that the RFRA doesn’t apply to it, or it’s applied with strict scrutiny.” The ACA does not explicitly note that it’s an exception to that RFRA rule.
