Are you saying that based on your own appraisal of the particular type of religious belief involved, on your assessment of the religious exercise associated with that religious belief…or are you applying the Wisconsin v Yoder test?
What were the particulars of your analytical process by which you concluded there was no substantial burden?
Yes, I think the RFRA was intended to extend religious expression rights to for-profit corporations.
But I suspect that some members of Congress who voted for it would have answered the question by limiting it to small, closely-held corporations whose religious mission was evident.
Hamlet, how is “context” defined? Since the act doesn’t say and AFAIK there was no legislative debate which clarifies “persons”, what do you use to determine that corporations are excluded? Are you including Smith as context?
If you want to pick this nit out to it’s conclusion a bit faster, you’ll find that we agree on what is going to happen and why, but perhaps disagree on the necessity to allow the law to follow every achievable chain of plausibility when intertwining the intentions of multiple parties on different, but sometimes overlapping areas.
I think we do agree that should society decide that it intends for things to be differently than the SCOTUS decides the (poorly written? poorly conceived?) law makes things, then the remedy is to pass a new law, not to somehow have the Justices torture the language of a law into duteous submission.
OTOH, I’m not really clear on exactly what rights and privileges were granted to corporations when they were granted personhood status. Was it human rights as described in the Constitution and Bill of Rights or was it limited in some fashion?
And since Hamlet agrees that non-profits are included – since the Roman Catholic Diocese of Arlington is a corporation – perhaps you might ask him how he determines only for-profit corporations are excluded.
Why? According to the 6th circuit, there is no mention whatsoever in the legislative history that it would do any such thing. And the stated purpose of the Act was simply to overturn the ruling in Smith and return the state of the law to pre-Smith interpretation. Wouldn’t logic and reason lead you to conclude that if they intended such a thing as extending free expression rights to for profit corporations, they might have, I don’t know, mentioned it somewhere.
As an aside, do you think the First Amendment guarantees for religious expression applies to corporations too?
If I pay you in widgets and you use one to smash a prostitutes’s head in, I’m not at fault.
If I pay you in dollars, and you use them to pay for something illegal, I’m not at fault.
If I pay you in insurance, and you use it for something that I don’t like, I’m not at fault.
There is no burden. I understand the people who run Hobby Lobby feeling shitty because the wages they pay might be used to do something they disagree with, but boo-fucking-hoo.
This is pretty plain, and it’s not hard to understand.
What Im finding interesting about Sotomayer and Kagan’s questions is that they seem to be implying that what makes this legal is that they don’t actually HAVE to provide contraception. That’s a pretty big deal. It says that even if they do decide to uphold the mandate, it’s not really even a mandate anymore and the government won’t be able to ever make it a mandate because the ruling relied on corporations’ ability to opt out and pay the smaller fine instead.
There is no single point at which corporations were granted personhood status.
I imagine that corporations had First Amendment free speech rights the first time a corporation owned a newspaper. Wouldn’t you think?
I mean…if the government had ever tried to suppress a newspaper’s right to print what it pleased using the argument that, as a mere corporation, the newspaper had no First Amendment rights, that would be a pretty memorable piece of history, right?
Do you think that’s how courts also assess the phrase “substantial burden?”
I mean, you have sort of decided what the words “substantial burden,” mean to you. My question is: do you also think that same meaning is used by the courts?
Would you be surprised to learn that in cases interpreting the phrase, the courts have approached it differently than you have?
This formulation, specifically: if the disagreement is based on their sincere religious belief, is it still “boo fucking how?”
And how did you arrive at this analytical process? I asked you that before and you did not answer. How did you concoct the “boo fucking hoo” test?
This is actually my biggest problem with this case. That certain emergency contraception methods are actually abortifacients* is stated as a belief by the owner of Hobby Lobby. I don’t think they should be able to make that decision.
Their belief is not “emergency contraception is wrong” but “abortifacients are wrong.” So I wouldn’t be surprised if the court argues that only don’t have to pay for drugs where the jury is still out. From what I’ve read, that would be the IUDs, but not the high doses of the usual birth control hormones. And the IUDs would only possibly be abortifacients (affecting implantation instead of contraception) if they are not used ahead of time. Hence, they’d only be allowed to not cover emergency IUDs due to their religious exemption.
Give their actual argument the analog of “strict scrutiny” rather than “rational basis.”
*Yeah, I’ve been spelling it wrong, too.
Well, seems there is actual medical research in animals with regards to how the drug ella, one of the drugs Hobby Lobby objects to, works.
mifepristone is otherwise known as RU486. HRP 2000 is otherwise known as ella.
Other actual published scientific articles are referenced in the same article that tend to support the idea that this drug acts as an abortifactant.
So it’s not like Hobby Lobby is making up the idea out of whole cloth.
Of course Smith is context. It was the very purpose that the RFRA was enacted (note: it didn’t list the purpose as being extending it to for-profit corporations). Congress was upset about the Smith decision, so they enacted RFRA to go back to the pre-Smith standard of review. And that was it. Not letting for-profits exercise religious expression.
As to context, the 6th circuit describes it (as I did earlier in the thread):*"The relevant “context” courts should look to when construing terms found in the Dictionary Act is “the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts.” When considering RFRA, that “context” includes “the body of free exercise case law that existed at the time of RFRA’s passage,” which Congress explicitly invoked in the statute’s text. The statute being construed only has to “indicate” a definition of the contested term contrary to the baseline provided by the Dictionary Act, rather than “require” or “necessitate” such a result. (“[A] contrary ‘indication’ may raise a specter short of inanity, and with something less than syllogistic force.” *Citations removed
In this case, the Sixth Circuit put a great deal of weight on the fact that "Congress’s express purpose in enacting RFRA was to restore Free Exercise Clause claims of the sort articulated in Sherbert and Yoder, claims which were fundamentally personal. Congress did not intend to expand the scope of the Free Exercise Clause. “RFRA was not meant to ‘expand, contract or alter the ability of a claimant to obtain relief in a manner consistent eith the Supreme Court’s free exercise jurisprudence under the compelling governmental interest test prior to Smith.’” (quoting S. Rep. No. 103–111, at 12 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1902)) Citations removed. Again.
With the very purpose of the statute covered, the 6th Circuit goes onto point out that *“When enacting RFRA, Congress specifically recognized that individuals and religious organizations enjoy free exercise rights under the First Amendment and, by extension, RFRA. … In contrast, the legislative history makes no mention of for-profit corporations. This is a sufficient indication that Congress did not intend the term “person” to cover entities like Autocam when it enacted RFRA.” *Citations removed.
So the “context” to consider is the very stated purpose of the law, statements about who the law would cover, and a complete lack of mention in the legislative history of for-profit corporations being granted Free Exercise rights.
As opposed to the clear, unambiguous text.
OK. This is why we have courts, I guess. The Sixth Circuit says that the context includes non-profits and excludes for-profits. Three federal circuits disagree; one other agrees with the Sixth.
The Supreme Court will resolve the circuit split, and then we can all live happily.
Unambigious? Wouldn’t that require the statute to define the term person? The very reason you go to the Dictionary Act is because the term is ambiguous. If it weren’t ambiguous in the first place, you wouldn’t have to do that. Of course it’s ambiguous.
And Dictionary Acts that specifically say that the context needs to be considered when deciding definitions of undefined terms.
Before they do, will you answer the questions I previously posted? Why you think that RFRA intended to extend the right to free expression of religion to non-profit corporations when they specifically aren’t mentioned with individuals and religious organizations as the beneficiaries of the act?
Or if you believe, even without RFRA, the Constitution itself protects a for-profit corporation’s free exercise rights?
And, if I may add another, do you believe that both of those apply to all corporations, regardless of ownership structure?
The Dictionary Act says, “the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” I think it’s almost comical that the default definition of a person is one that includes corporations, but it’s the one that existed at the time the RFRA was adopted. Given that, I suspect the onus is on the government to point to a reason why the Dictionary Act definition does not apply.
In that case, shouldn’t Lyng v Northwest Indian Cemetery Protective Association also be considered context? My google-fu is weak but I would assume that they were incorporated as a non-profit. IF (sorry, don’t know how to italicize on Tapatalk) they were such an organization, should free exercise rights be extended to all non-profits? IF that is the case, why is profit the determining factor instead of corporate personhood status?
Which is why I pointed out the context. I think there is an argument to be made that the “context” provided isn’t persuasive enough to overcome the stated definition (which illustrates the law school ready example of textualism overwhelming intent), which is how I think Scalia, Thomas, and Alito will rule in the case. I think the question is whether Breyer and Kennedy will join them.
But the next step in the discussion is, if you do believe textualism is the only way, what is the nature of the free expression right that the corporation wants to assert and whether the mandate is an infringement upon that right. And that’s another 4 pages worth of discussion.
If I understand, you’re wondering why the distinction I draw is between religious organizations and for-profit corporations? Is that it?