November 26, 2013

"The Supreme Court announced today that it will hear arguments in a case challenging Obamacare's birth control coverage requirement on religious freedom grounds."

"Obamacare's employer mandates are at issue in the case, which involves whether corporations and religious institutions themselves enjoy the same First Amendment [sic] rights as individuals," says a Breaking News email from CNN.
Among the plaintiffs is Hobby Lobby, a nationwide chain of about 500 for-profit arts and crafts stores. David Green and his family are the owners, and say their Christian beliefs clash with parts of the law's mandates for comprehensive coverage. They say some of the drugs that would be provided prevent human embryos from being implanted in a woman's womb, which the Greens equate to abortion.
ADDED: Full CNN story here.

AND: Note that the claim is based not on the Constitution, but on the Religious Freedom Restoration Act, a federal statute. Congress can change the statute. That counts heavily in my book.

51 comments:

mccullough said...

They love the hot-button cases.

AJ Lynch said...

I guess the SCOTUS weather vane is working if they are rushing to pile onto the piece of crap called Obamacare.

Henry said...

Congress can change the statute.

Ah, so it's an original sin case. Let's see the Solicitor General argue that.

Ann Althouse said...

This is a legal issue that needs to get decided in a form that will bind all courts. I don't think this is about politically leaning on the whole Obamacare structure.

Ann Althouse said...

@Henry The fact that Congress has the power to exempt its laws from RFRA but didn't (and could still do it, but doesn't) to me counts in favor of protecting the private company.

Paco Wové said...

"for-profit arts and crafts stores"

What odd phrasing. A for-profit retail establishment? How dare they!

madAsHell said...

SCOTUS weather vane is working

I thought the same thing. It's a do-over for the Obama administration.

Henry said...

@Althouse. That sounds right to me. I just humourously envision the White House arguing for a higher standard because Congress is obstructionist.

Ann Althouse said...

"What odd phrasing. A for-profit retail establishment? How dare they!"

They can't argue that corporations shouldn't have religious freedom rights because they'd be talking about all the religious organizations like churches and charities. So the rights-are-only-for-human-individuals approach doesn't work. They have to drive a wedge between 2 types or organizations, but they are doing it in the context of interpreting a statute, and the statute doesn't give them good text for making that argument.

Ann Althouse said...

From the 10th Circuit opinion:

RFRA provides, as a general rule, that the “Government shall not substantially burden a person’s exercise of religion.” (emphasis added). The parties dispute whether for-profit corporations, such as Hobby Lobby and Mardel, are persons exercising religion for purposes of RFRA. We thus turn to the question of whether Hobby Lobby, as a family owned business furthering its religious mission, and Mardel, as a Christian bookstore, can take advantage of RFRA’s protections.

The government makes two arguments for why this is not the case. First, it cites to civil rights statutes and labor laws that create an exemption for religious organizations. It then references case law suggesting that non-profit status is an objective criterion for determining whether an entity is a religious organization for purposes of these civil rights statutes and labor laws. The government therefore argues that, as a matter of statutory interpretation, RFRA should be read to carry forward the supposedly preexisting distinction between non-profit, religious corporations and for-profit, secular corporations. Second, the government asserts that the for-profit/non-profit distinction is rooted in the Free Exercise Clause. It suggests Congress did not intend RFRA to expand the scope of the Free Exercise Clause. The government therefore concludes RFRA does not extend to for-profit corporations.

We reject both of these arguments. First, we hold as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA’s protections. Such corporations can be “persons” exercising religion for purposes of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations.

Sigivald said...

"...which involves whether corporations and religious institutions themselves enjoy the same First Amendment rights as individuals".

Of course they do.

They're nothing but individuals acting in concert; no right that has any meaning can be lost in mere aggregation, can it?

"One person has the right to speak freely - two together have none" - does that even pass a laugh test? And is there any Constitutional basis for such a distinction?

"Congress shall make no law [...] abridging the freedom of speech" makes no mention of singular or plural entities or the nature of the speaker.

For that matter, "corporations" obviously have First Amendment rights, since otherwise Newspapers and TV stations wouldn't ... and the idea of "freedom of the press" that applies only to individuals hand-operating a press is, well, untenable, to put it charitably.

There's no way I can see to have a coherent idea of Constitutional rights - with any respect at all for the text, at least - that makes them exist only for isolated individuals.

cubanbob said...

Lets see how the Supreme Court rules. I suspect the ACA will die incrementally as the numerous challenges on tax and federalism issues among others render it dead in all but name.

Smilin' Jack said...

""The Supreme Court announced today that it will hear arguments in a case challenging Obamacare's birth control coverage requirement on religious freedom grounds.""

Only the insane have standing to challenge Obamacare.

AJ Lynch said...

Don't kid your self Althouse - even judges want to get aboard the Obamacare is a piece of crap bandwagon especially after they blessed it last year.

Paul said...

"I suspect the ACA will die incrementally as the numerous challenges on tax and federalism issues among others render it dead in all but name."

Didn't they forget the severability clause?

Hagar said...

"Not for profit" does not mean you cannot profit; it only means you cannot issue stock and pay dividends.

Paco Wové said...

Althouse- that makes sense now. Thanks for the explanation.

RecChief said...

I have a question. A couple of very conservative, and also retired i might add, attorney friends of mine think that the Supreme Court could revisit the Constitutionality of Obamacare. The grounds that both of them think this is possible is that although the Supreme Court has allowed the diminution of Congress' lawmaking power by allowing laws to be enacted that include regulation writing by the Executive Branch, Obamacare takes this to an extreme, and in fact seems to allow the President to decide what the law means on a day by day basis. In effect rewriting the law each time an inconvient (but foreseeable) unintended consequence comes up. My friends think that this is tantamount to Congress abdicating its lawmaking power and transferring it to the Executive Branch. In effect a nullification of the Constitution. Any legal scholars care to educate me on this possibility? Because while I agree with their premise, I do know what happens when reality comes up against premises.

RecChief said...
This comment has been removed by the author.
RecChief said...

Also, what has happened to common sense? I suspect that employees know this about Hobby Lobby up front, much as Sandra Fluke knew that Georgetown's insurance didn't cover contraceptives. But why should they have to bend to a few vocal employees, or students? In my mind, it would be like me going to work for my Kosher butcher friend and demanding that he keep the shop open on the Sabbath so that I could get some extra hours. Or, as a customer, demand that he sell bacon.

damikesc said...

Didn't they forget the severability clause?

Given the quite fervent hatred of the law, even Roberts will notice it this time.

Paul said...


Second @RecChief's question. Also, Ann, are you implying that this case will be less impactful on ACA because Congress can simply rewrite the RFRA? That sounds like no mean feat to me with this particular partisan and divided legislature. Am I missing something?

damikesc said...

Also, what has happened to common sense? I suspect that employees know this about Hobby Lobby up front, much as Sandra Fluke knew that Georgetown's insurance didn't cover contraceptives. But why should they have to bend to a few vocal employees, or students? In my mind, it would be like me going to work for my Kosher butcher friend and demanding that he keep the shop open on the Sabbath so that I could get some extra hours. Or, as a customer, demand that he sell bacon.

It's the old saying of "He/she wields their rights like a sword, not a shield".

"Why did you work there knowing their stances before you started?" should be a relevant and important to question for all of these kinds of cases.

MadisonMan said...

The way that came on my screen, I read it as The Supreme Court announced today that it will hear arguments in a case challenging Obama's Birth Certificate...."

Left Bank of the Charles said...

If it's a tax, the government can force you to pay for some else's birth control, just it can force you to pay for war, even if war is against your religious beliefs.

Of course, what's at issue here is the product that you can buy so that you can avoid paying the tax. The tax may be a substantial burden, but is the incremental cost of the birth control coverage?

$20 a year would not be substantial, nor would $100. But the claim is that the coverage actually reduces costs, because babies cost more. Let's say that can be proved. How can a cost reduction be a substantial burden?

nonapod said...

This should be somewhat entertaining I guess.

It's sad... I lost all faith long ago in the Supreme Court functioning as an entity that upholds the Constitution in a coherent or consistent way. Today it's purely a political entity pushing agendas of ancient oligarchs. Of course you could argue it was always that.

Left Bank of the Charles said...

A financial burden, it can be argued, can never be a substantial burden on the free exercise of religion. Render unto Caesar that which is Caesar's.

Rusty said...

Left Bank of the Charles said...
If it's a tax, the government can force you to pay for some else's birth control, just it can force you to pay for war, even if war is against your religious beliefs.

The analogy doesn't scan, because national defense is some thing the state is constitutionally obligated to do.
Healthcare. Not so much.
So forcing you to buy something or pay a tax is unconstitutional on the face of it. Not to mention immoral.

Ann Althouse said...

"Second @RecChief's question. Also, Ann, are you implying that this case will be less impactful on ACA because Congress can simply rewrite the RFRA?"

It's a statutory case, so Congress can amend the statute if it has the political will and votes to do so. I wouldn't assume that's simple.

Why didn't they make this clear in the law in the first place? Maybe they just didn't notice, but I assume it's that they didn't want the focus on compelling people to do things that they have a religious compunction about.

RecChief said...

@Althouse
Is there any validity in my friends' analysis? I don't see any possibility that anything could happen along the lines that they describe, but I'm wondering about the plausibility of the premise.

damikesc said...

A financial burden, it can be argued, can never be a substantial burden on the free exercise of religion.

Using your logic, a poll tax would be legal.

Clearly, financial burdens can be burdens on people's rights.

Christy said...

My favorite new conspiracy theory is that Obama operatives used NSA intelligence questioning the legality of the adoption of John Roberts' kids to force his vote/change of opinion on Obamacare. Blackmail never goes away according to my extensive Tv research.

Left Bank of the Charles said...

@damikesc, render unto Caesar is not my logic, it is the logic of Jesus Christ.

Left Bank of the Charles said...

@Rusty, it was decided the Feds could impose the tax In July 2012. You are of course entitled to maintain the contrary opinion, but as a matter of law you are wrong.

Jason said...

As a matter of law I would have been wrong about Dred Scott, too. .

Rusty said...

Left Bank of the Charles said...
@Rusty, it was decided the Feds could impose the tax In July 2012. You are of course entitled to maintain the contrary opinion, but as a matter of law you are wrong.

It is my contention that the law is wrong.

alan markus said...

My favorite new conspiracy theory is that Obama operatives used NSA intelligence questioning the legality of the adoption of John Roberts' kids to force his vote/change of opinion on Obamacare. Blackmail never goes away according to my extensive Tv research.

Back in 2005 the legality of the Roberts adoption was questioned by Daily Kos commenters - Daily KOS SCOTUS

Supposedly, the New York Times was looking at it, and I stress the word "supposedly" - New York Times Investigates Adoption Records of John Roberts Children

Maybe it wasn't necessary to use NSA intelligence, if the New York Times really did investigate.

RecChief said...

Do democrats really believe that 'free' birth control pills will paper over the stunning increases in their health insurance premiums? or the loss of their doctors?

cubanbob said...

"I suspect the ACA will die incrementally as the numerous challenges on tax and federalism issues among others render it dead in all but name."

Didn't they forget the severability clause?"

Apparently they blew past that argument in NFIB vs Sebillius. Or maybe they are holding off on that until they deal with the various tax aspects of it.

Paco Wové said...

the logic of Jesus Christ.

Theocrat.

RichardS said...

Always fun to repost this bit from James Madison (arguing against the Constitutionality of the Bank of the U.S., incidentally).
"As a charter of incorporation the bill creates an artificial person previously not existing in law. It confers important civil rights and attributes which could not otherwise be claimed. "
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=875&chapter=63865&layout=html&Itemid=27

cubanbob said...

@Rusty, it was decided the Feds could impose the tax In July 2012. You are of course entitled to maintain the contrary opinion, but as a matter of law you are wrong."

Left Bank this is one of the tax issues: there is no way for a taxpayer to lawfully avoid the tax. Don't buy a policy and you are subject to a tax penalty. Buy a policy and thanks to the insurance mandates you are forced to buy unwanted coverages which are operationally a tax. If you are poor enough you are required to sign up for Medicaid and when you die if you die with money your estate is required to pay back Medicaid. You can't arrange your affairs to legally avoid the tax and if you buy a qualified plan-the only plans you can legally buy-to avoid the tax penalty you are coerced-mandated to buy something you didn't want which would be contrary to the court's ruling in NFIB vs Sebillius. As for the religious issue they are also applicable to individual policies since the carriers under the insurance mandates can't sell you one without the objectionable coverages.

cubanbob said...

We reject both of these arguments. First, we hold as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA’s protections. Such corporations can be “persons” exercising religion for purposes of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations."

Ann it would appear that since the corporate veil can be pierced there is no meaningful distinction between the corporate person and the flesh and blood person that has the authority to act on the corporation's behalf. Hence the beliefs of the corporation especially in a closely held corporation can't be untangled from it's controlling officer.

RecChief your friends made a very astute observation. I maybe wrong but I believe that Congress can't delegate its authority. If I am not mistaken a parallel case of Congress delegating it's authority is now in the hands of the court. The case I'm thinking about is Bond vs US.

RecChief said...

thank you cubanbob. it surprises me because there are so many delegations of authority, in the form of regulation making powers that the Supreme Court didn't seem to have a problem with in the past.

Henry said...

The more I think about this, the less sympathetic I am to the plaintiffs. When you create a for-profit company you have declared your religion. Your religion is making money.

I am all for that. Let's cut out the ambiguity.

Are there other labor laws a corporation can dispense with based on religious belief? Which ones? Can a for-profit Christian Scientist construction company dispense with the hard hats and safety netting?

Achilles said...

This is awesome. The argument is that a family created a "corporation" which is not a "person" and they make a profit so they abdicated all of those first amendment rights and "we" should be able to force them to do what "we" want. "We" just have to come up with the right legal opinion to do so! Government at it's finest.

Lawyers and Bureaucrats are the best, especially when they work together.

Crazy Jane said...

More questions. If a company can be exempted because of its owner's religious beliefs, why can't another company be exempted because its non-churchgoing owner strongly prefers not to provide the coverage? Could a Zero Population Growth adherent refuse to provide maternity coverage? Could an order of Catholic priests refuse to buy coverage for birth control, abortions and maternity care?

Trashhauler said...

Eventually, the SC must hear a case brought by a religious entity based on the 1st Amendment.

It will be interesting to hear all the Catholic Supremes listen to the government argue that Notre Dame is only affiliated with the Catholic Church and not part of the Church proper.

Left Bank of the Charles said...

@Jason, it took a constitutional amendment to overturn Dred Scott, as it would to overturn Justice Roberts's decision. Repealing the ACA would be easier, but even that may not happen anytime soon.

I just don't see how the Justices can reach the constitutional question in this case, if it can be decided on the substantial burden issue under the statute.

Now it's entirely possible that neither the challengers nor the Obama administration will want to argue the substantial burden issue, for their own reasons, but surely the amicus briefs will, given that renders this case frivolous.

damikesc said...

Left Bank, while nice and lovely, Jesus has little value in terms of the US legal system.

Rusty said...

I know cubanbob, but I find the whole thing immoral and as anti liberal as it can be. By liberal I mean classic liberal.
It is a totalitarian power grab.