Remedy for Hobby Lobby decision?

[Bricker]

@Hamlet

Wait. Aren’t you the guy who would have ruled the exact same way if there wasn’t a RFRA and instead this case was brought up under the First Amendment?

No.

[Hamlet]

@Bricker

No.

Can’t be bothered to explain? Or is this Bricker, international lawyer of mystery.

[Bricker]

@Little_Nemo

The happy coincidence is that the Supreme Court happened to agree with the “religious freedom” argument offered in this case. They said in Boerne that they don’t feel bound by the RFRA. So I guess they abide by the law when they feel like it and ignore it when they don’t.

I can’t imagine how anyone would feel there’s any arbitrariness in such a policy.

No, Little Nemo, that’s not what they said in Boerne. They said, quoting the case syllabus:

All told, RFRA is a considerable congressional intrusion into **the States’ **traditional prerogatives and general authority to regulate for the health and welfare of their citizens, and is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion.

They said Congress did not have the power to bind **the states **with RFRA.

The decision spends a considerable amount of space discussing the separation of federal and state authority.

Boerne trashes the RFRA’s application to the states, based on the fact that the Feds have no such authority over the states. But the same opinion reasoning supports the RFRA as applied against the federal government.

They never said, in Boerne, that “they” didn’t feel bound by the RFRA. They said the STATES are not bound. Your summary is absolutely and utterly wrong.

[Bricker]

@Hamlet

Can’t be bothered to explain? Or is this Bricker, international lawyer of mystery.

Sorry. My personal view aside, I don’t believe a First Amendment claim would succeed based on Employment Division v. Smith.

[Bricker]

[quote=“Richard_Parker, post:74, topic:692060”]

Your suggestion that I’m some kind of anti-Hobby Lobby crusader is so far off the mark as to be laughable.

[quote]

Which is why I said I’d take your word for it. You’re often wrong but never dishonest.

[Trinopus]

@Bricker

. . . So here’s my question: are you saying the RFRA amounts to an establishment of religion because you think that’s what First Amendment caselaw supports, or just because you’d like to get rid of the RFRA and that seems like a vulnerable attack spot?

I don’t have enough knowledge of case law and precedent to offer an opinion.

I think it violates what the constitution says.

I’d certainly like to get rid of that law. I’m not capitalizing on a “vulnerable weak spot.” I favor court challenges even of the most robust and invulnerable laws that commingle church and state. I still want the damn motto off our money.

(The word “just” in your question is a bit leading. It implies bad faith. Shame on you.)

[Bricker]

@Trinopus

I don’t have enough knowledge of case law and precedent to offer an opinion.

I think it violates what the constitution says.

I’d certainly like to get rid of that law. I’m not capitalizing on a “vulnerable weak spot.” I favor court challenges even of the most robust and invulnerable laws that commingle church and state. I still want the damn motto off our money.

(The word “just” in your question is a bit leading. It implies bad faith. Shame on you.)

Ok. Sorry about the “just”

Your expanded answer makes clear you favor a different reading of the First Amendment than any current case law supports.

[ITR_champion]

@slash2k

Whose freedom of religion is being protected here?

This decision protects the freedom of religion of people who create and run businesses.

This decision says that my employer can deduct my money from my paycheck and use it to fund health care according to their religion. What happened to my religious rights? What does this do to my freedom of religion? Or is mine so much less important than the corporation’s?

First of all, tell us who your employer is, so we can check whether your employer is “closely held” corporation. If not, then your claim is flatly untrue. As has been mentioned countless times already, this decision affects a very small number of employers with a very small total number of employees. The vast majority of corporations still have absolutely no freedom at all in deciding whether or not to buy insurance that covers contraception.

Second, regardless of what sort of employer you have, you are flat wrong when you say “This decision says that my employer can deduct my money from my paycheck and use it to fund health care according to their religion.” Money can only be deducted from your paycheck to pay for health insurance if you agree to purchase the health care that your employer offers. If you don’t like what your employer offers, you’re perfectly free to buy insurance elsewhere. (Of course you’ll likely find that you have very few options, that the options you do have are quite lousy, and that prices are skyrocketing. But all of that is because of Obamacare, not because of any Supreme Court decision.)

Third, you ask “What happened to my religious rights?” Well, what happened to them? Certainly nothing in this decision violates any of your religious rights. At risk of stating the bleedingly obvious, you do not have any “religious right” to tell your employer what health care he or she can purchase, and you never have.

I’ve got to hand it to you. In one very short post you made at least two very large and obvious mistakes, possibly three. Perhaps next time you could try being a little bit closer to correct.

[Deeg]

@Little_Nemo

Now go get a shovel and dig it back up. The Civil Rights Amendments were enacted long after Madison was dead.

But the First Amendment? He wrote that. So the only two people who know the original meaning of freedom of religion are James Madison and Antonin Scalia.

No, it’s dead, Jim. The FF’s would likely spit their beer upon hearing a lot of things that we base on the Constitution, many of which you are probably in favor. Any argument that pretends to know how a FF would react to modern jurisprudence is null and void.

[Bryan_Ekers]

I’m just waiting for the person running a business who declares its against his religion to collect sales taxes. That should worth a few laughs.

[ITR_champion]

@Trinopus

The court should have thrown out the RFRA as a “law regarding an establishment of religion,” something the constitution says that Congress cannot pass.

The RFRA was passed over 20 years ago. Virtually all Congressional Democrats voted for it then, and support for the it among liberal Democrats has been close to unanimous for most of the time since. Yet suddenly I see liberals everywhere sayings that the RFRA is unconstitutional. Why the sudden change of heart? If the RFRA actually is unconstitutional, why haven’t Democrats been saying so for the past 20 years? And why did they vote for it in the first place?

[Trinopus]

@Bricker

Ok. Sorry about the “just”

Your expanded answer makes clear you favor a different reading of the First Amendment than any current case law supports.

I know. I don’t accept the “ceremonial deism” exemption, just to begin with. The First Amendment should prohibit a Congressional Chaplain and opening prayers.

Case law has carved out exceptions for what the text of the article actually says. So it goes.

[Smapti]

@Little_Nemo

Please.

Go back and ask James Madison if he thought the Bill of Rights applied to corporations. He’d look at you like you were insane. Corporate personhood is pure judicial invention.

Go back and ask James Madison what a corporation is. He’d look at you like you were insane.

Corporate personhood is a necessity because of the way the common law works. You like the idea that you can sue a corporation, right? Without corporate personhood, you can’t do that, because only a person is capable of being party to most forms of legal action.

[Smapti]

@slash2k

Whose freedom of religion is being protected here?

This decision says that my employer can deduct my money from my paycheck and use it to fund health care according to their religion. What happened to my religious rights? What does this do to my freedom of religion? Or is mine so much less important than the corporation’s?

I know of no religion that includes an obligation to receive employer-funded contraception.

[Cheesesteak]

@slash2k

This decision says that my employer can deduct my money from my paycheck and use it to fund health care according to their religion. What happened to my religious rights?

You’re not the one paying for the health care, you’re just suckling at the teat of the Corporation, and should be happy for whatever scraps they throw your way. I know you think you’re providing services in exchange for compensation, but we all know the truth.

[UltraVires]

My employer doesn’t give me coupons for free handguns (Or better stated, he doesn’t provide me coupons to exchange for free firearms in compensation for the work I provide). Is he violating my second amendment rights?

Nobody would seriously say that because I can take part of my paycheck and buy guns with it. Likewise, I can take part of my paycheck and buy contraception, abortions, liquor, and lottery tickets. Where are my rights being violated by Hobby Lobby?

[Stoid]

Perhaps I missed this, and I apologize if I did, but scanning the thread didn’t show it to me: Did anyone actually read the decision? Because aside from all the little side issues cropping up, the decision itself not only did not “screw the pooch”, it did not screw anyone else, either.

From the majority opinion, page 3 (9 of the whole document):

In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of reli- gious nonprofit corporations while ensuring that the em- ployees of these entities have precisely the same access to all FDA-approved contraceptives as employees of compa- nies whose owners have no religious objections to provid- ing such coverage. The employees of these religious non- profit corporations still have access to insurance coverage without cost sharing for all FDA-approved contracep- tives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

Although HHS has made this system available to reli- gious nonprofits that have religious objections to the con- traceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.

As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages . . . on others” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corpo- ration’s religious beliefs no matter the impact that ac- commodation may have on . . . thousands of women employed by Hobby Lobby.” Post, at 2.1 The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.

And from Kennedy’s concurring “remarks”:

It is important to confirm that a premise of the Court’s opinion is its as- sumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees. Ante, at 40.

As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection that has been considered in detail by the courts in this litiga- tion, and that is less restrictive than the means challenged by the plaintiffs in these cases. Ante, at 9–10, and n. 9, 43–44.

The means the Government chose is the imposition of a direct mandate on the employers in these cases. Ante, at 8–9. But in other instances the Government has allowed the same contraception coverage in issue here to be pro- vided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. See ante, at 9–10, and n. 9, 43–44. The accom- modation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs. See ante, at 44.

On this record and as explained by the Court, the Gov- ernment has not met its burden of showing that it cannot accommodate the plaintiffs’ similar religious objections under this established framework. RFRA is inconsis- tent with the insistence of an agency such as HHS on distinguishing between different religious believers—bur- dening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.

So I’m confused about exactly why so many people’s panties are in a twist…

[John_Mace]

@Cheesesteak

They’re not providing contraceptives, pharmacists are.

There is nothing wrong with saying that the guy who pays for a thing is “providing” the thing, even if that guy doesn’t personally hand it out.

WRT the variety of food you like to have, your employer provides you with an endless variety of food much the same way HL would have provided 20 types of contraceptive. Namely they give you money (in trade for labor), and you get to choose what food to spend it on, HL gives their employees comprehensive health insurance, and they get to choose what kind of contraceptive is best for them.

Bad analogy. For that analogy to work, your employer would give you food coupons (you couldn’t use these coupons for anything but food) and all grocery stores that accepted those coupons would be required to carry a list of items determined by the government.

[Really_Not_All_That_Bright]

So I’m confused about exactly why so many people’s panties are in a twist…

First, religious nonprofit groups are challenging HHS’ alternative method as an infringement on their religious liberty.

Second, the alternative method is basically a subsidy (or cost shifting) from religious employers to insurers.

Third, people are mostly panty-bunched because the majority opinion by its own terms can be applied to almost anything.

[Bricker]

@slash2k

Whose freedom of religion is being protected here?

This decision says that my employer can deduct my money from my paycheck and use it to fund health care according to their religion. What happened to my religious rights? What does this do to my freedom of religion? Or is mine so much less important than the corporation’s?

It’s not mandatory – you can certainly work for Hobby Lobby but refuse their insurance plan.