March 25, 2014

The oral argument in the Hobby Lobby religious freedom and contraception case.

SCOTUSblog and The Wall Street Journal have some detail to their coverage, but I'm going to read the transcript (PDF).

First, Justices Sotomayor and Kagan double-team lawyer Paul Clement, pressuring him about all the various medical treatments — in addition to the contraceptives at issue in this case — that might require individual analysis about whether there is a substantial burden on religion and, if so, whether the government needs to impose it to serve a compelling interest.

Clement says that "nothing could be clearer" than that this is exactly the approach Congress opted to require when it passed the Religious Freedom Restoration Act.

He's right about that! You may think this individualized analysis is clumsy and hard to believe, but Congress passed RFRA, and that is what it says. Kagan and Sotomayor are making arguments that would have been appropriate in Congress, but here, in the Court, to my ear, it only underscores that the courts are stuck with a statute that forces them to do the kind of detailed religious exemptions work that they had interpreted out of the Free Exercise Clause in the Smith case which Congress trumped with RFRA.

Justice Ginsburg says:

[M]aybe it seemed clear then, but since RFRA, just as before RFRA, Congress has continued to write into Federal legislation specific religious exemptions for some, but not everybody, for individuals, sometimes religious institutions. So if it was all that clear that RFRA took care of it all, why did Congress continue after RFRA to pass these laws focusing the exemption on an individual, religious institution?
Isn't that a funny question?! It's obvious to me that Congress doesn't change the meaning of the  general statute — which sets up a system of judge-administered exemptions — by writing specific exemptions into other statutes. Congress is serving the interests of various constituent groups each time it legislates, and giving statutory exemptions is a way to spare religious people the additional burden of having to fight in court to relieve their burdens. It only shows more congressional enthusiasm for religious exemptions, not any reason to see erosion of the RFRA routine.

Clement says that Congress may be providing "a belt and suspenders."

ADDED: I'm skipping ahead to page 18 of the transcript, where Sotomayor asks Clement how a court is supposed to determine when a a corporation has a religious belief? "Who says it? The majority of shareholders? The corporate officers?" Clement says to use "the same basic way you approach other questions of corporate intent or corporate motivation." He suggests that "if some large corporation asserts some claim that's going to save them lots of money," then the courts should be able to say the asserted religious belief lacks "sincerity." The case law has said the courts can properly judge the sincerity of religious beliefs — not the truth of the beliefs but the sincerity — and Justice Sotomayor calls the sincerity issue "dangerous," but then she immediately shifts to the issue of the court's role in assessing whether the burden on religion is substantial. Not long after that Clement concedes that "most of these sincerity questions" end up merged into the questions of substantial burden.

Justice Kagan comes in to minimize the cost of withdrawing from providing insurance coverage to employees. It's only $26 million a year ($2000 per employee), but Clement keeps citing the figure $475 million, which refers to the penalty paid for providing coverage that fails to include the objected-to items. Chief Justice Roberts says: "I thought that part of the religious commitment of the owners was to provide health care for its employees." So that's key! Hobby Lobby — for religious reasons — doesn't like the option of offering no health insurance, and in order to keep providing it, it must pay this atrocious penalty. Kagan is saying, why not drop out of insurance as part of the pay package? It would be much cheaper. But the question is whether Hobby Lobby has a choice.

Clement calls the $26 million a penalty, and Sotomayor corrects him: "It's not called a penalty. It's called a tax." Roberts, who saved the ACA back in 2012 by calling the insurance mandate a "tax," says "She's right about that." And the transcript notes "Laughter." Clement resists the hilarity. He thinks that here "it certainly feels punitive."

Kagan pushes him: Why doesn't Hobby Lobby pay the $26 million tax/penalty and then also raise the employee wages so they can buy their own insurance? That would get out from under the religious burden. She points to an old case (Braunfeld) where a Jewish shopkeeper wanted an exemption from a Sunday closing law because his religion required him to be closed on Saturday. The shopkeeper lost because the law didn't force him to be open on his Sabbath day. He just got stuck being closed on 2 days a week, while Sunday Sabbath people were only closed one day a week. He didn't have to violate his religion. He just lost money. This is a good point, and there's some confusing back and forth at this point with Justice Scalia and then Justice Kennedy jumping in.

The $2000 per employee goes to the government and the company has also to come up with additional salary payments so that employees can buy their own health insurance, but Kennedy wants it to be a "hypothetical" in which the money spent is deemed "a wash." Clement bobbles but tries to assert that there would still be a substantial burden. He struggles to recenter the inquiry onto whether the government has a compelling interest and whether Congress has an "alternative way" to alleviate the burden. "[A]ll we're really talking about is who's going to pay for a subsidy that the government prefers." If there's a compelling interest and the government must use the least restrictive alternative, why doesn't the government directly subsidize contraceptives?

I'm only half way through the argument, but I'm tired now. I'll get to the Solicitor General's argument later.

ADDED: Having gotten a good night's sleep, I made my way through the rest of the argument: here.

112 comments:

Scott said...

From WSJ coverage:

"THE SCENE: Snow is falling outside the Supreme Court but there’s a robust protester presence anyway. Women’s rights advocates, along with liberal groups such as Americans United for the Separation of Church and State and Catholics for Choice are carrying branded signs and t-shirts, with messages like “This is personal.” One poster shows a picture of a craft store under the message “This is not a church.” And there are some quirkier home-made efforts, including a knitted uterus."

Yes, a knitted uterus.

eric said...

I wonder what our Constitutional Law Professor in Chief thinks about such a case.

Really, his is the only opinion that matters. We don't actually need a surpreme court, we have Obama.

mesquito said...

Although the Solicitor General had to contend mostly with questions and comments by the conservative members of the Court, he also had some difficulty when one of the Court’s moderate liberals — Justice Stephen G. Breyer — finally moved into the argument to ask why the government couldn’t just pay for the services it wanted female workers to have.

Verrilli tried to answer by saying that, if the government did try a different way to assure such services for corporate employees, the religious owners of some companies would just challenge that, too.


O bullshit.

Hagar said...

Amen

Renee said...

@Scott

Yeah, the anti-Catholicism lobby.

Fertility Awareness Methods are just as effective, and once knowledge learned of you own body you don't need contraception.

The fear isn't the Catholic Church, the fear is the lost of profit if even a portion of sexually active women hoose FAM over the Pill or IUDs.

Deirdre Mundy said...

Renee- yeah, it's even worse now that there are computerized systems (Google Marquette method) Spit on a wand, and let the computer do all the calculations, keep your chart, etc...

With FAM so easy and side effect-free, the pharmaceutical companies must be in a panic....

Browndog said...

Oral arguments...

Solicitor General: Individual mandate is Constitutional because..Commerce Clause

SC: Not a tax?

Solicitor General: Nope, no way, no how is it a tax--COMMERCE CLAUSE

Supreme Court rules: Individual mandate is Constitutional because it's a tax.

Justice Thomas, AKA Uncle Tom--excoriated for not participating in the "winner take all", life or death plastic sword fight that is "oral arguments".

jimf said...

Just read through the arguments...very interesting. It appears as if the less restrictive alternative of having the Government pay for certain procedures, which are objectionable on religious grounds, may have some traction.

RecChief said...

why can't th eliberal justices confine themselves to the actual law? sorry, just answered my own question.

These questions are precisely why many of us are wary of "legislating from the bench"

Renee said...

I thought Marquette was peeing on a stick.

That's what I did for their year long study.

Expensive with the monitor.

Mike said...

Why can't women buy their own contraceptives? Trojans aren't covered are they? This has the appearance of discrimination...

Renee said...

In Africa, the state sets up its own contraception clinics and the government leaves everyone and the Catholic hospitals alone.

gadfly said...

Perhaps the liberal justices do not understand that the government doesn't pay for anything - the governed do.

Real American said...

abstinence costs nothing. the government can pay for that.

Renee said...

Real American


But that would put the CDC's STD division out of work.

Browndog said...

I find it instructive that the Executive issued thousands of "waivers" at random, yet this case required a potential Constitutionally altering Supreme Court ruling.

DKWalser said...

Renee, et al,

As interesting as is your discussion of the advantages of FAM over other forms of birth control, it is off topic. Worse, it falls into the Left's trap of framing the case as a question of access to birth control. Which is why they are carrying signs that say "None of My Boss's Business". The Left wants the public (and the Court) to see the controversy as religious zealots trying ban birth control. The case before the court has nothing to do with access to birth control. Hobby Lobby is NOT trying to prohibit its employees from using birth control. Nor are Republicans trying to limit access to birth control. Your discussion lends cover to their framing of the question.

Revenant said...

Verrilli tried to answer by saying that, if the government did try a different way to assure such services for corporate employees, the religious owners of some companies would just challenge that, too. O bullshit.

That may be an insult to cow poo, mesquito. Verrilli's argument is pretty embarrassing; the Justice department really doesn't hire the best and the brightest.

furious_a said...

If Hobby Lobby had just bundled for Obama they could have saved themselves serious legal fees.

Bob Ellison said...

Professor, your last paragraph (starting with "isn't that a funny question") is unreadable, inscrutable. More to come? More clarity, mayhaps?

The Hobby Lobby case is pretty simple. The federal government wants to force HL to pay for abortions and contraception. HL wants to opt out. This is not rocket science.

Smilin' Jack said...

The oral argument in the Hobby Lobby religious freedom and contraception case.

And after that, the Justices will decide if Planned Parenthood can distribute condoms inscribed with the Ten Commandments in a national park under a Christmas tree. Religion and law: amusing enough separately, absolutely hilarious when they meet.

Revenant said...

But that would put the CDC's STD division out of work.

Abstinence only protects you from STDs if you practice it for your entire life. Of course, if everyone did that the human race would cease to exist in eighty years or so.

Confining yourself to sex within marriage certainly *lowers* your chances of contracting an STD, but it doesn't eliminate the chance because many partners cheat.

Renee said...

@DKW

But openly discussing it allows the general public, why Catholics hold this belief.

Our beliefs are constantly mocked as anti-science and anti-woman by NARAL & Planned Parenthood.

We shouldn't have to explain ourselves, but be glad to correct individuals who are misinformed.

Austin said...

The more fundamental point here is that Congress has no constitutional authority to legislate on religious matters. In the whole of Article I, section 8, there is not the slightest reference to a grant of power to exercise legislative authority on religious matters. Why hasn't that point ever been raised, I wonder.

Renee said...

How can we even question the pros and cons of contraception, if the government puts it on a pedestal with a mandate.

Contraception so vital to our nation, no co-pay and no deductable. Contraception/family planning is no longer a personal decision, but an act of civic duty and right with absolutely no financial barriers for women tohave sex without having children.

That is what the mandate is saying. If it isn't, then why the mandate.

Deirdre Mundy said...

Renee- the newer monitors use a spit-test. And some don't even need test strips!

(I have a friend who was researching them for her own use, and it's amazing how great the technology is now. I think I'd go the computerized route if I was going to use it, just because I'm a mess with paperwork, temperatures, etc...)

Browndog said...

Smilin' Jack said...

Religion and law: amusing enough separately, absolutely hilarious when they meet.


Yep. Apostle Paul and John the Baptist found it amusing...separately-

The Christians in the Colosseum? ROTFLMA

Deirdre Mundy said...

Renee- this is the spit one: http://www.ovacue.com/

richard mcenroe said...

The religious exclusion of Obamacare is ALREADY established by mass exemption of followers of Islam from its requirements.

Lyssa said...

Receipt and review of subpoena for medical records of Mandy N, phone call to victim-witness coordinator. Regarding subpoena for medical records of David L., emails with requesting attorney.

I'm not familiar with the line of jurisprudence on this, but it seems to me that, at least in cases where there wasn't strong evidence that the claimant lacked sincerity, it would be inappropriate for a court to determine whether or not basically anything was a substantial burden on religion. Am I wrong that that element should virtually always be assumed?

Browndog said...

Again, I fail to see it-

It seems to me many have devolved into what they see as a legal argument as to whether or not contraceptives are a Constitutional right.

No wonder the leftists win every debate-

Browndog said...

That which is permissible is mandated.

That which is not explicitly permitted is banned.

garage mahal said...

Odd that HL is morally against birth control when the cheap crap they sell is made almost entirely in China, which mandates birth control and forced abortions. Many workers that produce this stuff are imprisoned Christians working in forced labor camps. Give me a break.

YoungHegelian said...

@garage,

Many workers that produce this stuff are imprisoned Christians working in forced labor camps. Give me a break.

So, you're saying that if one can't guarantee the moral foundation of one's consumer supply chain, one isn't deserving of 1st amendment rights?

I must admit, that's a different take on the matter. Not one I would advertise to the public at large if I were you, but definitely a different take.

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

If Hobby Lobby wins, what precedent would be set? Could a Muslim employer get away with compelling their female employees to wear head to toe covering? Could an employer refuse to cover vaccinations? What far reaching ramifications and unintended consequences could we be looking at? Could employers be able to ignore anti discrimination laws?

garage mahal said...

So, you're saying that if one can't guarantee the moral foundation of one's consumer supply chain, one isn't deserving of 1st amendment rights?

I'm saying Hobby Lobby is full of shit.

Bob Ellison said...

AaronBrrrr, could you be more stupid?

Renee said...

@ArronBrrrr

Companies require their uniforms/dress codeall the time.

YoungHegelian said...

@AB,

If Hobby Lobby wins, what precedent would be set? Could a Muslim employer get away with compelling their female employees to wear head to toe covering? Could an employer refuse to cover vaccinations?

Or, maybe native Americans could use peyote when you & I can't. Or, maybe Quaker boys don't get blown up in combat like every other mothers' son does.

Religious-based exemption has a long & storied history in the Republic, and we seem to have survived.

Could employers be able to ignore anti discrimination laws?

You mean, exempt themselves from EEOC regulations, like Congress does in its hiring practices?

YoungHegelian said...

@garage,

I'm saying Hobby Lobby is full of shit.

Thanks for the cogent answer to my question, G-man!

mccullough said...

I think Althouse's response was better than Clement's. The reason Congress gave specific exemptions in Obamacare was to spare certain persons the trouble of having to show that the particular application of a law or regulation is a substantial burden and also to show that the government does not have a compelling interest and/or is not using the least restrictive means to accomplish it.

That said, Clement is better at his job than any of the justices are at their job.

garage mahal said...

Could an employer refuse to cover vaccinations? What far reaching ramifications and unintended consequences could we be looking at?

Can an employer that believes in prayer-only healing refuse to provide coverage for any of its employees?

Fen said...

Can the EPA force corporations to burn dead babies to heat their building, like they do in the UK?

Fen said...

What about murder? Can the government force corporations to murder people?

AaronBrrrr said...

How about Jehovah's Witness employers and coverage for blood transfusions?

Fen said...

Or pay for the murder of people?

Renee said...

@garage

Well the employees have the state exchanges as an option.
Employees may choose NOT to work at a small business, if they don't offer health insurance.

RecChief said...

Verrilli has made several embarrassing arguments during his tenure

RecChief said...

"In Africa, the state sets up its own contraception clinics and the government leaves everyone and the Catholic hospitals alone."


Where do African countries get the money for that? It wouldn't be Western, specifically US, dollars given as aid for AIDS in those countries would it?

Renee said...

@RecChief

From the United Nations, African countries have quotas to keep their populations lows with contraception and sterilization. Families are pressured to only have two.

The US Fertility rate is under 2.0, it isnt like we need more contraception. Very few women have 4 or more children, about 10%. But they tend to be religious, and there is a disdain for the religious as 'breeders'.

Revenant said...

If Hobby Lobby wins, what precedent would be set? Could a Muslim employer get away with compelling their female employees to wear head to toe covering?

No.

Could an employer refuse to cover vaccinations?

Yes.

What far reaching ramifications and unintended consequences could we be looking at?

What far reaching ramifications could we be looking at if they lose?

Could employers be able to ignore anti discrimination laws?

No.

SteveBrooklineMA said...

Conservatives are playing this issue terribly. Instead of making a case from the perspective of employers, they should be doing so from the employees' perspective. It is employees who are being forced to accept compensation for their labor in the form of abortion coverage and contraception coverage. What if the government forced people to accept bacon or alcohol as compensation for their labor? Surely Jews and Muslims would have a legitimate complaint.

In my view, employers aren't really paying for our healthcare coverage anyway. They are paying us for our labor, with healthcare coverage. Employers withhold taxes and send them to the government. Does that mean that employers are "paying our taxes"? Of course not.

Revenant said...

Roberts scored a lethal hit against the Justice Department by getting their rep to concede that (a) the Justice Department recognizes that corporations can have a *race* for regulatory purposes and (b) that the Justice Department likes that and has no desire to see it overturned.

If a company can be "black" or "white" in the eyes of the civil rights division, why can't it be "Christian" or "Muslim"?

Real American said...

if millions of dollars in fines isn't a substantial burden, I don't know what is.

Revenant said...

Can an employer that believes in prayer-only healing refuse to provide coverage for any of its employees?

I would certainly hope so.

Real American said...

why aren't women responsible for their own sexual lifestyles? are they weak and pathetic or just completely irresponsible? Why must they be subsidized by their employers and the taxpayers?

Anjelica said...

So, if a corporation can have a race, it can also have a religion? There is an unintended consequence that some may not have thought of. What is the possility that the protections that corporations enjoy now can be stripped away as they are increasingly becoming "people"? People can be sued. Just wondering, I'm not a lawyer.

rhhardin said...

They should take account also of whether the burden comes from a stupid law.

Scott said...

per TIME magazine website:

Justice Kagan: women are “quite tangibly harmed” when employers don’t provide contraceptive coverage."

Explain this to me. I don't get how this could be true.

Anjelica said...

I heard a discussion about this concept today in relation to a Hobby Lobby win.

"Piercing The Veil
A judicial doctrine that allows a plaintiff to hold otherwise immune corporate shareholders personally liable for the debts of or damages caused by a corporation under their control. The corporate veil can be pierced when shareholders have acted intentionally and illegally, when the corporation has neglected corporate formalities, and/or when the corporation is found to be a mere alter ego of the shareholders (a shield set up to defraud creditors). This doctrine applies to limited liability companies as well. Also known as disregarding the corporate entity."

http://www.nolo.com/dictionary/piercing-the-veil-term.html

Renee said...

Women are harmed when employers put everone on as part-time, so they don't have to cover anyone.

Dust Bunny Queen said...

Halbig v. Sebelius. Obamacare supporters call Halbig “the greatest existential litigation threat to the Affordable Care Act.”

So. What is this great threat? That they will be forced to actually implement the law as written. "It merely asks the court to force the administration to implement the law as Congress intended, a prospect that absolutely terrifies Obamacare supporters."

The HORROR

Depending on the size of a company, it would cost less to just dispense with health insurance for your employees and pay the fine. Companies really would like to continue with some sort of health insurance since it attracts and retains good employees. Keeping employees happy and employed is cheaper than constant turn over. HOWEVER, when it comes to violating your religious principles by providing abortion inducing drugs or birth control the choice isn't so much a numbers issue as it is a moral one.

No one forces you to work at Hobby Lobby or any other place. If women don't like the coverage or lack of coverage....find another job somewhere else.

gregq said...

Sotomeyer is such an idiot (and / or political hack) that she couldn't go a whole paragraph into the hearing without saying something stupid:

"Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?"

The employer's decision doesn't preclude USING anything. It simply precludes teh employer being forced to pay for it.

cubanbob said...

Health insurance exists like any other insurance to indemnify a damage. In the case of health insurance the damage to be indemnified is disease or injury. Pregnancy in of itself is neither a disease or injury.

Renee said...

Prenatal visits were treated like an annual physical at the time before all these changes.

cubanbob said...

"In my view, employers aren't really paying for our healthcare coverage anyway. They are paying us for our labor, with healthcare coverage. Employers withhold taxes and send them to the government. Does that mean that employers are "paying our taxes"? Of course not."

Your view of reality is devoid of an actual perception of objective reality. Yes employers do pay their share of the employees FICA taxes. That money which provides no benefit to the employer but certainly does cost the shareholders money. As for health insurance I have yet to see a C corp that has a plan that the employee pays 100% of the premium.

gregq said...

Blogger AaronBrrrr babbles...

If Hobby Lobby wins, what precedent would be set? Could a Muslim employer get away with compelling their female employees to wear head to toe covering? Could an employer refuse to cover vaccinations? What far reaching ramifications and unintended consequences could we be looking at? Could employers be able to ignore anti discrimination laws?

Well, let's pretend to think for a moment.

1: A: Can Hobby Lobby tell its employees they're not allowed to us contraceptives? No. HL just doesn't want to pay for them.

B: Can Hobby Lobby impose a dress code on its employees at work? Of course it can? Waht world are you living in?

2: If an employer can find an insurance company willing to sell them a policy that doesn't cover vaccinations, they should be allowed to buy it. Would I work for that company? Hell no.

3: Unfortunately, as an Oregon baker and an NM Wedding Photographer, the fascist left is very eager to force "anti-discrimination" laws on everyone.

SMGalbraith said...

As I understand it, the Medicaid programs of all 50 states along with the federal government provide free contraception to poor women. That's free as in no cost.

This, i.e., lack of birth control, is not a problem. It's a manufactured issue by this Administration for political purposes. Along with the leftwing element that thinks not giving out free contraception is somehow denying it to women.

gregq said...

Blogger garage mahal asked...

Can an employer that believes in prayer-only healing refuse to provide coverage for any of its employees?

Of course they can. At most, they'd ahve to pay a relatively small fine. But HL's religious beliefs require them to provide health insurance to their employees.

You'd know this if you actually bothered to learn anything about teh case before pontificating on it.

Bob Ellison said...

This just gets dumber and dumber.

Iapetus said...

Justice Kagan: women are “quite tangibly harmed” when employers don’t provide contraceptive coverage."

Obviously Congress didn't see it entirely that way when they framed the law. If the harm is so great and such a burden on women, wouldn't Congress have mandated every company without exception to provide health insurance and not allowed some of them to opt out by paying the Danegeld "tax penalty" instead? Is Kagan hinting she'd be open to having SCOTUS correct that oversight by Congress? After all, it is as much JohnRobertsCare as it is ObamaCare that they're reviewing. The black robes need to protect CJ Roberts' legacy.

Douglas said...

Garage,
I think the answer to your question is that the Government has a compelling interest in ensuring that people are vaccinated (action required to correct negative externalities) but there is no compelling interest in requiring that employers pay for employees' birth control.

cubanbob said...

Garage,
I think the answer to your question is that the Government has a compelling interest in ensuring that people are vaccinated (action required to correct negative externalities) but there is no compelling interest in requiring that employers pay for employees' birth control."

Vaccinations are a form of indemnification from the damages of a disease. However pregnancy in of itself isn't a disease or injury.

jazzizhep said...

@Garage and @George

You seem to under the illusion that there is a some phantom right for persons to gain a particular job at a specific company. If a Muslim bookstore wants its female employees to wear burkas with eye holes, she can either comply or refuse to work at the establishment. It is no different than Jehovah's Witnesses not wanting to provide for blood transfusions. You don't like their policy, don't freakin' work there.

All of your petty arguments only highlight the fallibility of a federal government insisting 320 million people behave in the same manner and have the same beliefs. Which is exactly what the gov't is doing--deciding whose beliefs are valid.

It might be different if Hobby Lobby was telling its employees they can't use abortifacients, but they are simply saying "we won't pay for them." I must add I feel their pain. Why the hell do I need OB/GYN coverage? Isn't pregnancy a choice?

The argument of the Jewish shop that wanted to open on Sunday seems invalid to me. It would be more appropriate if the law stated they must open on the Sabbath which would violate the religious convictions of the owner.

SteveBrooklineMA said...

Cubanbob's position is the economically naive view that the cost is born by the check-writer. The employer does not bear the cost of FICA or employee's income taxes simply because it sends the money to the government.

Employers are purchasing labor with a total compensation package that includes health care coverage. They are not buying insurance and giving it to their employees for free.

jazzizhep said...

Cato has a good, short piece on how the 1st Amendment has been flipped from the gov't showing it has a compelling reason to breach 1A to an entity proving it should be exempt from the government's encroachment.

http://www.cato.org/blog/religious-liberty-exception-government-rule?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29

AJ Lynch said...

A voucher paid to every citizen to be used to buy health insurance would have avoided all this crap. But no, the sooper geeenyous community activist and his Dem pals instead insisted on taking control of 1/6 of the economy. How's that working out for you Mr. President? Still think you have that permanent voting majority in hand you maroon?

n.n said...

I though they were universally, unapologetically pro-choice?

Obamacare is a progressive tax unbacked by productive development, which is why it needed to be passed at the federal level. It is in particular critical to supplement lagging revenue in highly subsidized and financed districts.

As a universal tax, it is a survivor's tax. It is a punitive measure assessed against human beings who escape planned parenthood (i.e. state-directed population control), who, ironically, are forced to pay for diminishing future generations (i.e. Dodo Dynasty).

Revenant said...

What is the possility that the protections that corporations enjoy now can be stripped away as they are increasingly becoming "people"? People can be sued. Just wondering, I'm not a lawyer.

Er... corporations can already be sued. What protection are they losing, exactly?

Jason Lee said...

"come up with additional salary payments so that employees can buy their own health insurance"

Employees would get significantly less for their money in that scenario because of the way the individual market is structured vs. employee-provided insurance which comes with big tax breaks.

This would put Hobby Lobby at a disadvantage as an employer trying to provide competitive health benefits and the employees would be at a disadvantage as health care consumers.

The Cracker Emcee said...

"Cubanbob's position is the economically naive view that the cost is born by the check-writer. The employer does not bear the cost of FICA or employee's income taxes simply because it sends the money to the government."

The employer doesn't bear any costs if they can help it. All costs are passed on to the customer if at all possible.

Browndog said...

What the hell is going on around here?

Yes, hobby Lobby can make their employees wear burkas, pay for their own healthcare, belly dance for customers...whatever-

-they'd be out of employees and customers--out of business in 14 seconds.

It's called free market commerce.

As far as birth control--I missed the part that women had no choice but to spread the legs and have sex-- I mean, sure-if women were allowed to be raped at will, then, yea, it makes sense to mandate contraceptives. Other than that-

Man O'man, this whole thing has gone off the tangent. We're not even talking about anything sensible anymore.

This whole "debate" is completely off thy rails.

RecChief said...

Renee said...
@RecChief

From the United Nations, African countries have quotas to keep their populations lows with contraception and sterilization. Families are pressured to only have two.

The US Fertility rate is under 2.0, it isnt like we need more contraception. Very few women have 4 or more children, about 10%. But they tend to be religious, and there is a disdain for the religious as 'breeders'."


We have five (5) kids....

MayBee said...

I wonder how many jobs Sotomayor, Ginsberg, and Kagan have had where their birth control was covered with no deductible.

I wonder how vital they felt that to be to their health. Of they didn't have it, I wonder if they felt repressed.

cubanbob said...

The employer doesn't bear any costs if they can help it. All costs are passed on to the customer if at all possible."

Who knew? If an employer had no costs then no employer would ever be in the red. Indeed the whole concept of a corporate income tax makes no sense with your logic since all employer revenue would be profit. Indeed using that logic a corporate tax return could be done on a post card: total cash revenues minus percentage of tax, check enclosed.

cubanbob said...

" The more fundamental point here is that Congress has no constitutional authority to legislate on religious matters. In the whole of Article I, section 8, there is not the slightest reference to a grant of power to exercise legislative authority on religious matters. Why hasn't that point ever been raised, I wonder."

I suspect the only judge on the court who can see that is He Who Does Not Ask Questions On The Obvious during oral arguments.

cubanbob said...

"Employers are purchasing labor with a total compensation package that includes health care coverage. They are not buying insurance and giving it to their employees for free."

Spoken by a man who probably never met a payroll or owened a business. In a hot economy or in a very tight labor market that may well be an inducement to recruit but in a bad economy with lots of slack in the labor force that isn't true. To use a real estate example in a hot mall the landlord can get what he wants. In a not so hot mall the tenants can squeeze the landlord. There are plenty of émployers in this economy that don't need to pay for health insurance to recruit labor and there are plenty more who can save themselves the costs by off shoring.

Browndog said...

The employer doesn't bear any costs if they can help it. All costs are passed on to the customer if at all possible.

Come home after working 12-16 hours, and dive into the books, balance out the day/week/quarter-

Come back and tell us how much it costs to pass on costs to your customers.

Foolish statement.

cubanbob said...

Getting out of the weeds in this thread the question these " brilliant" jurists can't seem to comprehend is if a corporation as a juridical person can't have a religious belief how could a juridical person form let alone have any beliefs? It couldn't give donations to any religious charity since to do so would require it to have a religious belief. Or a political belief or a belief of any kind since any donation of money would be a dissolution of shareholder equity since those funds are neither invested in the enterprise or passed through its owners.

PB Reader said...

I'm not sure "modern jurisprudence" will accept an argument that corporations or, soon people, can have religious objections when government seeks to compell their behavior.

I do believe that by suggesting they drop insurance, pay the penalty/tax, and then forcing their employers to buy insurance that is in violation of their religious tenants is defacto equivalent to forcing Hobby Lobby to accept those things to which they religiously object.

gregq said...

Iapetus said...

Justice Kagan: women are “quite tangibly harmed” when employers don’t provide contraceptive coverage."

Obviously Congress didn't see it entirely that way when they framed the law.

Yeah, I wish someone had made that point today: If Congress thought what ObamaCare was offering was worth trampling over people's religious liberty, Congress could have exempted ObamaCare from the RFRA. Congress didn't. I really wish one of the honest Justices had went after Verrilli on that:

SG Verrilli, Congress could have exempted ObamaCare from the RFRA, yes?

Yes sir.

Why didn't they do so? And since Congress didn't consider these mandates important enough to exempt from the RFRA, why should we?

Michael K said...

I accidentally watched a few minutes of MSNBC tonight. They were talking about this case and they sure do like metrosexual hosts, don't they ? Wow !

gregq said...

I do find all this agony about the RFRA quite amusing, given its pedigree.

Smith, which the RFRA was a response to, was passed in 1990, 5 - 4, "conservatives" with the 5. The RFRA, however, wasn't passed until 1993. You know, when Clinton took office, and the Democrats dominated both Houses of Congress.

Clearly, the Democrats took this up, because they figured that it was only the minor religions that the government would be going after, you know, the ones that want to ingest hallucinogenics. They clearly didn't appreciate what a bunch of totalitarian thugs their party members are, and would be the second they got some power.

Now, protections that Democrats passed because they were sure they would only protect minorities, are going to stop the government from bullying mainstream Christians.

The irony is quite delightful.

Jay said...

Another day, another delay:

Obama administration will allow more time to enroll in health care on federal marketplace

But if the Republicans don't "replace" this with something, then they are like totally not serious and stuff!!!

damikesc said...

After reading the arguments, the female justices are absolute morons. Kagan is the intellectual non-entity I thought she was during her confirmation.

A Justice not realizing that rights aren't absolute and ruling in Hobby Lobby's favor here doesn't insure they employers can oppose things like transfusions in the future indicates a level of non-thought that is scary for a SCOTUS justice.

Odd that HL is morally against birth control when the cheap crap they sell is made almost entirely in China, which mandates birth control and forced abortions.

I can't believe that Starbucks sells coffee when Mondays happen.

I mean, if we're going to go with idiotic and illogical arguments, why hold back?

If Hobby Lobby wins, what precedent would be set? Could a Muslim employer get away with compelling their female employees to wear head to toe covering? Could an employer refuse to cover vaccinations? What far reaching ramifications and unintended consequences could we be looking at? Could employers be able to ignore anti discrimination laws?

No for all. And you should be a bit embarrassed that this qualifies as a point to make.

Can an employer that believes in prayer-only healing refuse to provide coverage for any of its employees?

Yes. As they can now. Given that they have to PAY for the coverage, they are free to not do so.

Steve said...

"[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races." - Antonin Scalia, Employment Division v Smith, 1990

If he really believes that, he will decide to uphold Obamacare's birth control clauses in the face of religious objections. We'll see if he feels the same when it's his religion at issue, instead of some Native American beliefs.

damikesc said...

Steve, RFRA was passed since then.

Try and keep up.

Bob Ellison said...

Is RFRA pronounced "riff-ruh", or "urf-rah"?

SGT Ted said...

The liberal women on the Court have found that the Vagina Exception of the US Constitution holds that whatever Women want, Women get, and that Other Peoples Liberty and Freedom take a back seat to that at all times. Just ask their husbands, they know all about that.

The raging, entitled privilege of women over men in modern society knows no bounds.

damikesc said...

Ill remind people that Kagan was the justice who infamously was too stupid to turn off her car when she got to work. She is credentialed...but she sure as Hell isn't educated.

SGT Ted said...

why aren't women responsible for their own sexual lifestyles? are they weak and pathetic or just completely irresponsible? Why must they be subsidized by their employers and the taxpayers?

That's covered under the Vagina Exception to the US Constitution. Women Get What They Want At All Times When It Involved Their Vagina. It was established in Divorce Court jurisprudence in the 1970s.

SGT Ted said...

Justice Kagan: women are “quite tangibly harmed” when employers don’t provide contraceptive coverage.

Nevermind that Justice Kagans assertion doesn't make any sense to any man whose been buying condoms for his entire adult life using his own money.

Women are entitled to Free Shit from Other People, Because The Vagina Requires It.

SGT Ted said...

On the flip side, I am looking forward to the day when I can make some Uber anti-gun liberals purchase me handgun ammunition so I can exercised my 2nd Amendment Rights.

Harold said...

SMGalbraith said...

As I understand it, the Medicaid programs of all 50 states along with the federal government provide free contraception to poor women. That's free as in no cost.

And that's just the way Margaret Sanger, founder of planned parenthood, and speaker at numerous KKK rallies would want it. The poor shouldn't have children according to eugenicists. Her policy of eliminating the poor has been enacted into law.

Now, if we could only sneak into law mandatory sterilization of criminals and other sub-humans as she wanted, liberal victory will be complete.

Harold said...

RecChief said...

Renee said...
@RecChief

...... Very few women have 4 or more children, about 10%. But they tend to be religious, and there is a disdain for the religious as 'breeders'."

We have five (5) kids....

Graduated from an upper middle class HS in '73, class of about 400. Have 5 kids, and from looking at classmate profiles on facebook, am the only class graduate with 5 kids. We are statistically non-existent, you and I. Around where I live now, in rural America, I see two types of families with more then 3 kids. Mennonites and Amish with all the kids born less then 18 months apart. And single mom headed families in which each sibling has a different father, and most if not all family income coming from Uncle Sam, that is, you and me and Ann and other taxpayers.

The Amish and Mennonites, btw, are exempt from the ACA. They provide for their own. They utilize very few tax supported utilities other then roads. Heard someone exclaim recently that there are fewer kids then ever here in the community, and the schools are getting smaller. I pointed out that there are MORE kids then 30 years ago. They're in the private Mennonite schools. (Where the Amish kids go to school with the other plain folk.)

n.n said...

Steve:

Promoting evolutionary dysfunction and dissociation of risk is not a "valid and neutral law of general applicability". Society and humanity have a particular, yet apparently inscrutable, interest to prevent or mitigate each progress.

Subsidizing or promoting contraception is not a duty of a legitimate government. Neither is state-sponsored murder/abortion or any other aspect of a population control protocol. Their claim for a need of either implies that women and men are incapable of self-moderating, responsible behavior, or that they hope to realize that outcome.

Bob Ellison said...

Cut your hair like your dictator.

Deirdre Mundy said...

Harold- You clearly don't hang around with many homeschoolers...

While families 5+ kids aren't the majority in these groups (most people still have 2-4... even if they're not contracepting), they're not unusual either.

I think some of it is that once you have more than 4 kids, homeschooling is easier than dealing with all the public school papers and projects and packed lunches and whatnot...

Gahrie said...

Now, if we could only sneak into law mandatory sterilization of criminals and other sub-humans as she wanted, liberal victory will be complete.

They did in many states. The rest of us just managed to get rid of those laws.

Hyphenated American said...

"Can an employer that believes in prayer-only healing refuse to provide coverage for any of its employees?"

Does an employer have to explain why it is not buying insurance fir it's employees?

Harold said...

Deirdre Mundy said...

Harold- You clearly don't hang around with many homeschoolers...
**********
Being involved in Scouts, I see more then you might think. And homeschoolers are still a real small percentage of the population, and 3 or 4 kids is still outside the norm, and 5 or more is statistically insignificant for intact families other then Amish, Mennonite, and (strong) Catholic. The last group is the one we would belong to. At least my wife is, which would make it we.