"A Portland transgender woman filed a lawsuit Wednesday claiming that the popular dating app Tinder is discriminating against transgender people by deleting their dating profiles."

The Oregonian reports.

Tinder offered the following statement Wednesday, saying it has not been discriminating:

“While we do not comment on pending litigation, we can say, categorically, that we do not ban users from Tinder due to gender identity. At Tinder, we fundamentally believe that gender is not binary and we support inclusivity and acceptance of all people, which is why we offer more than 37 gender identity options for our users in the United States.”

ADDED:  Are corporations people? Do they have the capacity to "fundamentally believe" anything? I'm reminded of arguments I beat to death when the Hobby Lobby case was pending. (Could a corporation have a religion that could be substantially burdened by having to pay for abortions?)

When a corporation says "we fundamentally believe X," isn't it simply deploying a slogan intended to win favor from customers? Isn't Tinder simply saying the corporation's position is what it's management has determined is most likely to enhance its profits? Or, especially in this case, it's saying what is most like to fend off lawsuits, like this one, which cost money and generate what we've determined is bad PR.

A corporation buys a whole town in California, and the plan is to make it all about marijuana.

Here's the article, at NPR. The town is 80 acres big, on the northeastern border of Mojave National Preserve, and 60 miles from Las Vegas. (Nevada has already legalized marijuana for recreational use, so the location is not interfering with the abstemiousness of a bordering state.)

It's not some cute hippie operation. The company,  American Green, is "the largest publicly traded cannabis company in the U.S.," plans to use the local aquifer in the manufacture of bottled water "infused with CBD, the cannabis component linked to relieving pain and inflammation."

And from there, American Green hopes to attract like-minded companies to set up shop — CBD and mineral baths, dispensaries, artist-in-residence programs, culinary events and bed-and-breakfasts — "to complete the charming small town experience."

So 80 acres that currently have next to nothing...



... will be built up with a bottling plant and then beautiful tourist-attracting places will arise. Somehow artists and foodies and spa people are considered like-minded to bottlers of drug-tainted water. Sorry. I think what you've got here is a big corporation that wants to make a lot of money tapping the aquifer and got NPR to do a puff piece on them — a puff the magic eco-tourism piece.

UPDATE: Blogger unpublished this post and told me "Your content has violated our Illegal activities policy." This post is about a news item that appeared in NPR. Reports about crime are not illegal!

UPDATE 2: Blogger reevaluated this post and sent me email that said:

We have re-evaluated the post titled "A corporation buys a whole town in California, and the plan is to make it all about marijuana. " against Community Guidelines.... Upon review, the post has been reinstated.

8 hours after that, I received email about this same post, saying:

As you may know, our Community Guidelines (https://blogger.com/go/contentpolicy) describe the boundaries for what we allow-- and don't allow-- on Blogger. Your post titled "A corporation buys a whole town in California, and the plan is to make it all about marijuana. " was flagged to us for review. We have determined that it violates our guidelines and have unpublished the URL http://althouse.blogspot.com/2017/08/a-corporation-buys-whole-town-in.html, making it unavailable to blog readers.

Come on, Blogger! Don't you have a way to keep the SAME POST from getting unpublished. Am I in some kind of cycle of doom? This post should be immune from future flagging.

UPDATE 3: This post was very quickly reinstated after I requested review again. Let's see if it gets unpublished again. 

UPDATE 4: It got unpublished again, almost immediately! I am in a cycle of doom! Wake up, Blogger! I may have to do a new post shining light on this problem. I'm actually suspicious that the corporation — American Green — is out to get me because I was critical of its commercial product. 

This post is CRITICAL of a marijuana company, and it is CRITICAL of an NPR news report that presents it in a positive light. How can my post possibly be considered to promote criminal behavior? If anything, I am applying a HIGHER standard of adherence to criminal law than American Green and NPR. Marijuana is legalized in Nevada and California, but not at the federal level.

Imagine a restaurant that "believes in hamburgers" and just wants to "persuade you to eat them."

If you can do that, you're ready for Jonathan Chait's analogy, quoted in "The New Republic Is for Sale Again":

A business is something that is trying to make money. If you’re in a town and you’re trying to sell hamburgers, and everyone wants pizza, you’d switch to pizza. But The New Republic believes in hamburgers. We think you need hamburgers, and we will continue to make hamburgers and try and persuade you to eat them.

Maybe I could imagine a restaurant that believes in vegetables — believes to such a degree that just getting you to eat them is all they want. They? A restaurant is an "it." The "it" doesn't believe. There's a "they" there for any belief to be going on. And there can be people working through a corporation who intend to stick to their beliefs. It's hard to imagine people caring so much about other people eating hamburgers — thinking "you need hamburgers" — that they'd invest and work in a restaurant that only lost money. You know, maybe Chait's writing would be more persuasive if he made good analogies.

But let's upgrade the analogy to a restaurant that serves locally grown organic vegetables and refuses to switch to cheaper, commercially grown stuff. Now, that we've got something we can imagine, we're empowered to see what's really wrong with Chait's analogy. The people running that restaurant would still want to make money, and they sure wouldn't want to lose money. And it would be a business.

It's bizarrely anti-business to think that if something is a business, making money is its only value. This is the same problem we saw in the context of the Hobby Lobby case, where some people thought that a for-profit corporation could not be protected by the Religious Freedom Restoration Act. If it was for profit, they argued, how could the people working through it have any religious values worth protecting? The corporation should have to be not for profit to merit any protection.

Elaborate NYT graphic makes me think something quite different from what they want me to think.

"Here are 120 million Monopoly pieces, roughly one for every household in the United States," says the text, and we see a large pile of green Monopoly "houses" (blocking the view of the White House), and when we try to scroll down, the screen zooms in, and we see a few red Monopoly "hotels" on the top of the pile. The text changes to: "Just 158 families have provided nearly half of the early money for efforts to capture the White House."

This is a great graphic. Loved it. But it got me thinking, and I read this:

They are overwhelmingly white, rich, older and male, in a nation that is being remade by the young, by women, and by black and brown voters... Now they are deploying their vast wealth in the political arena, providing almost half of all the seed money raised to support Democratic and Republican presidential candidates. Just 158 families, along with companies they own or control, contributed $176 million in the first phase of the campaign, a New York Times investigation found. Not since before Watergate have so few people and businesses provided so much early money in a campaign, most of it through channels legalized by the Supreme Court’s Citizens United decision five years ago.

Now, first of all, we're talking about spending money on speech, that's what Citizens United "legalized." I'm putting "legalized," in quotes, because what the Supreme Court did in Citizens United was to perceive the existence of a constitutional right, a right to spend money on speech. These are not contributions to the presidential campaigns, but companies [in Citizens United and families and their companies in the NYT study] spending their own money to get their opinions out into the marketplace of ideas, just as The New York Times corporation spends its money to get its ideas out, including its idea that there's something spurious about corporations engaging in political speech.

And, second, if we're talking about families — 158 families — how are they "overwhelmingly... male"? Are there a lot of gay men spending this money or just heterosexual couples who somehow produce far more sons than daughters? Or is it that the NYT is operating within the old stereotype that sees a family with a man in it as headed by the man?

That said, what I really want to talk about is that pile of Monopoly houses, far, far outnumbering the hotels. There are 120 million households, and 158 spend half of what is  spent, and amount that's only $176 million. If all of the households gave just $5, that would be $600 million, vastly overwhelming those supposedly fearsome, overspending, rich, white men. That money could be given directly to that candidate (since it comes, obviously, nowhere near the limit).

Instead of complaining about 158 families spending $176 million (which strikes me as a fairly paltry amount, especially since only $2,700 can be given to a candidate), the clamor should be about the need for everyone to give just a little money to someone. Skip one cup of coffee, one cheeseburger, one movie, and give the money to the candidate you like best. It could be so easy.

And yet bitching about those terrible rich people — those terrible male white people — serves other political interests... interests that the rich white males who own The New York Times have a constitutional right to push with all the powerful rhetoric and lovely graphics they can muster.

ADDED: Why did the NYT draw the line at 158 families? Why not analyze the top 150 families or the top 200? I can't help feeling that the Times drew the line where it would make the other facts seem most dramatic. We're told they contributed "nearly half of the early money." Why not draw the line at exactly half? If we included the next 10% or 20% or 30% of the early money, how many families would we see and how different would the conclusions have to be?

UPDATE: Power Line links to this post and says:

The rich people who own the New York Times, and the reporters and editors who work for them, are very clear about their own First Amendment right to devote corporate assets to weighing in on the issues of the day, but they are eager to deprive everyone else of the same right, especially those who don’t agree with their far-left perspective....

What the New York Times really objects to is diversity. The only way to get free speech nowadays–diverse free speech, anyway–is to pay for it. Thank God there are a handful of people with the means and the will to do so.

And Jaltcoh, at Facebook, quotes my statement — "if we're talking about families — 158 families — how are they 'overwhelmingly... male'?" — and somebody suggests: "Single-person households that only contain men?" That makes me say:

If that's what it is, then I object to the use of the word "families." Has the NYT picked up the sentimentality of politicians, who continually talk about "families," as if single people didn't exist? The word "households" appears in the article, and I think anyone talking about demographics needs to notice the difference between "families" and "households" and be more careful.

"Some liberal writer at the Huffington Post was excited to find out that I’ve been talking to Wisconsinites about how enthusiastically the entertainment media spread a 'business is bad' message."

Writes Senator Ron Johnson.

[The Huffington Post writer, Ryan Grim] seems to get hung up on the way I mentioned “The Lego Movie,” a children’s movie “in which the bad guy is a heartless businessman intent on destroying the world for profit. ‘That's done for a reason,’ Johnson said. ‘They're starting that propaganda, and it's insidious.’”...

[Grim] can’t seem to figure out why I or anyone else would say this about “The Lego Movie,” and he insinuates some kind of conspiracy. Actually, it’s pretty simple: I read a great piece in the Wall Street Journal in which an entrepreneur pointed out that the plot revolved around “the evil exploits of its villain, President Business.”..

The strange thing isn’t that a kids’ movie was anti-business, it is that someone claiming to be a journalist never encountered the idea before.

I got to that via a Capital Times ("Your progressive voice") article titled "Russ Feingold vs. Ron Johnson, Round One: Everything is not awesome."

"Russ Feingold is traveling to all 72 of Wisconsin counties so he can listen to and act on the concerns of working families from all corners of the state," said campaign manager Tom Russell in an email. "That’s what Wisconsin families expect from their senator. If Ron Johnson and his rich special interest buddies want to waste their millions complaining about 'The Lego Movie' and buying weird, angry billboards, they are welcome to keep doing it."

The Lego jab is a reference to comments Johnson made last week to WisPolitics.com after addressing the Milwaukee Metropolitan Chamber of Commerce.

The supposedly weird billboard — put up in Milwaukee by the National Republican Senatorial Committee — says "Welcome back to Wisconsin, Russ/It's been a while" and shows Feingold with a map of California and some palm trees.

"Did Laurence Tribe Sell Out?"

Asks lawprof Tim Wu in The New Yorker. Key paragraph:

How you feel about this work probably depends on how you feel about the use of the Constitution as an anti-regulatory tool and the idea of corporations as constitutional “persons.” Tribe has taken a strong view of individual rights; his view of corporate rights is similar, and in this capacity he has at times advanced constitutional arguments that might invalidate great parts of the administrative state, in a manner recalling the Supreme Court’s jurisprudence of the nineteen-twenties and thirties. In that sense, the current condemnation of Tribe can be seen as part of a larger progressive backlash against the use of the Bill of Rights to serve corporate interests.

"Liberals used to love the First Amendment."

"But that was in an era when courts used it mostly to protect powerless people like civil rights activists and war protesters," writes Adam Liptak in The New York Times.

“Corporations have begun to displace individuals as the direct beneficiaries of the First Amendment,” Professor Coates wrote. The trend, he added, is “recent but accelerating.”

Hmm. I don't know. In conlaw class, I was just teaching the great 1964 landmark case — that loved-by-liberals case — New York Times v. Sullivan. But, fortunately, I've got The New York Times to set me straight. Corporations are not people.

Okay. Thanks to Adam Liptak, a man I'm noticing only because the corporate platform of The New York Times elevates him high above all the poor and puny anonymities....

And I'm fascinated by this notion that the Constitution ought to mean what would make liberals love it. Hey, Supreme Court, why don't you make the Constitution lovable again? We used to love you, First Amendment, but you changed.

Ironically, back when Liptak's liberals loved the First Amendment, a big deal was always made about how it protects the speech you hate. That was the challenge, to love the freedom itself. Seems like you changed.

The difference between requiring a business to cover contraceptives for employees and barring it from committing acts of racial discrimination.

The dissenting opinion in Hobby Lobby and many sincere commentators worry that the Supreme Court's opinion could mean that the government won't be able to require businesses — if they cite a religious objection — to refrain from race discrimination and other acts that we, as a society, consider morally wrong and terribly harmful.

But the majority opinion makes a sharp, clear distinction that it's very important for people to understand before they accept the invitation to become inflamed over the horrible prospect of religious exemptions from laws that restrict businesses that are causing harm to others.

Under the Religious Freedom Restoration Act, when the federal government imposes a substantial burden on the exercise of religion, it must justify that burden by showing that it is the least restrictive means of achieving a compelling governmental interest. In Hobby Lobby, the compelling governmental interest is comprehensive preventive health care for women, and the majority said that requiring the employer to include coverage of all FDA-approved contraceptives in its health care plan was not the least restrictive way to to serve that interest. There are other ways the government could get the cost of contraceptives covered, ways that wouldn't rope in the employer.

So the government's interest could be served without imposing the burden on religion.

But when the government bans race discrimination, it is serving a compelling interest in banning race discrimination and there is no alternative way to achieve that end. From the majority opinion:

The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

With race discrimination, the corporation that gets the burden is the source of the harm to others that the government seeks to eliminate. That can only be done by regulating the business. It's automatically the least restrictive way to meet the compelling interest.

As Chief Justice Roberts famously said (in another context): "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Making employers cover particular health needs of employees is tapping them to provide a benefit. The corporation is not the source of the harm. It's the source of jobs. Historically, businesses have included health insurance as part of the pay package, and then the employees are getting their personal health-care needs met with this benefit, but there are other ways that health care could be funded. And that's why the government in Hobby Lobby couldn't show that it had used the least restrictive alternative.

So don't think that Hobby Lobby would apply to situations where the business is itself inflicting the harm to others that the government wants to alleviate. So let's say that in the future the federal government would like to ban employment discrimination against gay people, and a business wants to use RFRA to claim an entitlement to continue to discriminate. Quite aside from the difficulty of expounding a sincere religious belief that is substantially burdened by needing to refrain from discriminating, the government's argument that banning discrimination would easily satisfy the least-restrictive-alternative requirement.

The way to stop discrimination on the basis of sexual orientation is to stop discriminating on the basis of sexual orientation.

Those who don't like what did happen in Hobby Lobby have an incentive to portray it as portending horrible consequences that, in fact, the Court took pains to foreclose.

Justice Alito, in Hobby Lobby, adds to the corporations-are-people discourse.

I have a corporations are people tag for a reason. Remember when Romney said those words? Much more at the tag. This is a discourse I have been following. The haters of Citizens United love to mock this idea, and it may have seemed especially mockable in the context of religion. (Can a corporation pray?!!)

From today's opinion upholding a corporation's challenge under the Religious Freedom Restoration Act of the contraception coverage requirement under Obamacare:

As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have ae a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.

There is also some excellent discussion of why people might choose a for-profit corporate form when they have purposes other than just to make money:

Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals. In fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corporation,” a dual-purpose entity that seeks to achieve both abenefit for the public and a profit for its owners.

The Supreme Court — in Hobby Lobby — upholds religious exemptions to Obamacare.

"RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, HL and Mardel."

Once RFRA (the Religious Freedom Restoration Act) covers Hobby Lobby and other for-profit corporations, the government could still win if it could show that what it's done is the least restrictive way to meet a compelling interest.

Here's the opinion PDF. It's 5-4, written by Justice Alito. Along with Roberts, Scalia, and Thomas, Justice Kennedy joins the Alito opinion. He also writes a concurrence. The dissenting opinion is written by Ginsburg.

ADDED: From the opinion:

In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.

The Court found a substantial burden to the religion of the owners of the businesses in being required to facilitate what they see as abortions or to pay fines that could be as "as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies."

Under the statute (RFRA), that substantial burden triggers strict scrutiny, and the Court assumes for the purpose of the opinion that the HHS regulations have a compelling interest, because is so easy to say: Even if the interest is compelling, HHS hasn't used the least restrictive means for serving it.

HHS has already put into place a system for contraceptive coverage for religious nonprofit corporations, and it gave "no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections."

Here's some push-back to the dissent:

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 corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women employed by Hobby Lobby.” Post, at 2.1 

If HHS would just give the religious for-profit corporations the same accommodation it already gives to the nonprofit religious corporations, the effect on women employees "would be precisely zero."

I need to spend more time with the opinion, but for now, I'll say that it may be harder for the government to figure out which for-profit corporations warrant the accommodation, but that's the consequence of Congress's own statute RFRA, so it's a problem of the government's own making, not a compelling interest itself to be served by denying religious accommodations. RFRA itself is a monument to the government's lack of interest in avoiding the trouble of figuring out things like this.

UPDATE: I've just spent a lot of time and I've read every word of all of the opinions. I have a bunch of things to say, but maybe not too much before tomorrow, other than to say that contrary to the quote from SCOTUSblog that begins this post, the case isn't restricted to closely held corporations. Any corporation can use RFRA, but it's unlikely that a publicly traded corporation will be able to establish that there is a substantial burden on its exercise of religion, which is what is needed under RFRA to force the government to show that it has a compelling interest and has used the least restrictive means to serve that interest.

"Obama Administration Suffers A Drubbing In Hobby Lobby Arguments."

That's the headline at Forbes, reminding me to get back to the transcript, which I half read yesterday. Here's my post, which covers the argument for Hobby Lobby by Paul Clement and ends without getting to Solicitor General Donald Verrilli's argument against the religious exemption the company seeks.

Verrilli begins ponderously and the Chief Justice scampers right in to trip him up:

"We think of Hollywood as a very progressive place and a bastion of liberal thought."

"But when you look at the numbers and the representation of women onscreen, that’s absolutely not the case. The film industry does not like change."

Film — to the extent that it's an "industry" — likes money. Does it have political beliefs? I thought the "progressive" belief was that corporate entities lack minds and souls and can have no beliefs, so the moment you say "film industry," your concept collapses on itself.

But let's assume these groups of people acting together within corporations really do have political, moral, philosophical, and religious beliefs. Let's get more detail about what those beliefs really are. These corporate entities may relatively successfully brand themselves as more or less liberal and progressive, but that doesn't mean that they really are and maybe they don't even want to be.

Pressure groups — like the Center for the Study of Women in Television and Film at San Diego State University, quoted in the linked NYT article — can mess with the branding. And moviegoers can vote with their ticket-buying for more woman-centered flicks. But that all keys into profit-seeking, not anything genuinely liberal.

But it's fun to watch from a distance when those who pose as liberals are tweaked by those who stand to their left.

Can a for-profit corporation have a religion worthy of protection?

Here's an essay by Elizabeth Wydra at SCOTUSblog saying the answer is no:

As a brief filed by corporate law scholars explains, “[t]he first principle of corporate law is that for-profit corporations are entities that possess legal interests and a legal identity of their own — one separate and distinct from their shareholders.”...

To be sure, the current owners of these companies have their own personal free exercise rights, but... [the Affordable Care Act] places requirements only on the corporate entities.  The individual corporate owners retain their own rights under the First Amendment and RFRA, but those rights simply aren’t available when the claimed burden is placed on the corporation itself....

Something's missing there. A corporation is a separate entity, and there is a long history of corporate law to refer to, but the question is the coverage of a statute, the Religious Freedom Restoration Act, which says "Government shall not substantially burden a person’s exercise of religion." No one can argue that "person" doesn't include corporations, since actual churches and other religious organizations are unquestionably covered. So if corporations are covered, what is the basis for reading some corporations out of the statute? (Keep in mind that Congress had the power to except the Affordable Care Act from RFRA and did not.)

It seems to me that the issue is whether a particular corporation can be said to have religion. A church has religion. No one argues against that. The argument is that the Court should adopt a bright-line rule interpreting RFRA that says no for-profit corporation can possibly have a religion, no matter what the facts are.

But the facts about Hobby Lobby are pretty strong. Here's the brief (PDF) for Hobby Lobby (the upcoming Supreme Court case).

“The Greens have organized their businesses with express religious principles in mind.” Pet.App.8a. Hobby Lobby’s official statement of purpose commits the company to “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.” JA134-35. The Greens operate Hobby Lobby and Mardel through a management trust they created, of which each Green is a trustee. Pet.App.8a; JA129-30, 134. The Greens each signed a Statement of Faith and a Trustee Commitment obligating them to conduct the businesses according to their religious beliefs, to “honor God with all that has been entrusted” to them, and to “use the Green family assets to create, support, and leverage the efforts of Christian ministries.” JA134.

“[T]he Greens allow their faith to guide business decisions for both companies.” Pet.App.8a. All Hobby Lobby stores close on Sundays, at a cost of millions per year, to allow employees a day of rest. Each Christmas and Easter, Hobby Lobby buys hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.” E.g., Easter 2013, Advertisement, http://www.hobbylobby.com/assets/ images/holiday_messages/messages/2013e.jpg. 

Yo, lawyers, that URL is coming up "We're sorry, the page you requested was not found." [ADDED: The cut-and-pasted URL inserts a space, which I didn't notice, but a commenter did. Deleting that space gets you to the right place, here.] If you want to know what Hobby Lobby holiday ads look like, here are a whole bunch of them. Here's one — from Easter 2003 — that I chose to click on because the title, "All the tools," seemed to have potential in making a joke about lawyers. The text is comical — darkly comical — on its own: "Son, I need you to Build a Bridge, here are all the tools you will need. See you soon — Love, Dad." The tools provided are a hammer and 3 nails, the tools that will be used against the body of Jesus Christ in this bridge-building enterprise.

Back to the brief:

Store music features Christian songs. Employees have cost-free access to chaplains, spiritual counseling, and religiously-themed financial courses. And company profits provide millions of dollars every year to ministries. Pet.App.8a; JA134-39. Mardel primarily sells Christian materials and describes itself as “a faith-based company dedicated to renewing minds and transforming lives through the products we sell and the ministries we support.” Pet.App.8a; JA137-38.

Respondents also refrain from business activities forbidden by their religious beliefs. For example, to avoid promoting alcohol, Hobby Lobby does not sell shot glasses. Hobby Lobby once declined a liquor store’s offer to take over one of its building leases, costing it hundreds of thousands of dollars a year. Similarly, Hobby Lobby does not allow its trucks to “back-haul” beer and so loses substantial profits by refusing offers from distributors. Pet.App.8a; JA136.

Now, does that corporation have religion? Remember, the issue is whether it has religion that is protected from substantial burdens by the Religious Freedom Restoration Act, which could be repealed or amended by Congress, and from which Congress could have excepted the ACA.

The question to be answered is what does a particular statute mean now, not what religion really is and whether corporations really have it. Congress could amend RFRA whenever it acquires the political will to do so, and it could explicitly define "persons" within the meaning of that statute to exclude for-profit corporations. So the issue is whether the Supreme Court should do that political work for Congress.

Since I don't think Congress could gather the political will to put that exclusion into RFRA, I don't think the Supreme Court should interpret Congress's statute to mean what Congress would not be able to say directly. And I think Congress knew — if Congress has any brain capable of containing any thoughts — that it could put an exclusion from RFRA into the ACA, and that makes it even more apparent that the government in the Hobby Lobby case should not be able extract the for-profit-corporation exception from the Court.

"If corporations can’t have religious beliefs, then it follows that they can’t believe in climate change, sustainable investment or any other beliefs embraced by the corporate social responsibility movement."

Writes Keith Paul Bishop, "shocked" by the brief filed by 44 law professors in the Hobby Lobby case, in a post that Professor Bainbridge called "A truly great post that made me very happy."

A&E celebrates Christmas by showing 25 episodes in a row of "Duck Dynasty."

Replete with the supposedly on-the-outs Phil Robertson.

“I think, honestly, it’s A&E trying to play both sides of the coin,” [said Cate Meighan, senior writer for Celeb Dirty Laundry]. “They’ve come out and not supported Phil’s statements… however they’re also looking at the backlash from the fans, and they have a huge amount of backlash from the fans... It is really a money thing... You’re going to have the same people tuning into ‘Duck Dynasty’ that always have and the same people not watching that always have.”

She said at the end of the day, the series will likely continue if the advertisers continue rush to air ads during the series.... “Unfortunately people are secondary,” she said. “At the end of every single thing that we see it’s about the money and the advertising.”

Oh, come on, Cate. Corporations are people too. So it's "a money thing"? Who but people care about money? People invented money just as people invented language and getting offended at language, and people invented corporations to channel money and language and offense. And entertainment. Arts and entertainment.

Peace on earth, good will toward people of all entertainment orientations.

"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.

"Supreme Court to Decide Whether Corporations Can Pray."

Snarky headline at the Bill Moyers website on an article about the pending Supreme Court case dealing with whether religious persons who have set up their business using the corporate form can be compelled by the government to provide their employees with health insurance that covers drugs that they believe murder human beings.

The case isn't about praying. It's about money and what it means to be compelled to contribute your money to something that you sincerely believe God requires you to fight to the end. I think it's close to the same problem that individuals face when they pay their taxes and believe that something the government is using the money for is deeply wrong. For example: war.

But the Bill Moyers operation thinks mocking religious people is a good move. I say it's prime jackassery... except to the extent that it's old-school, left-wing hatred of corporations. Let's see how they feel if Hobby Lobby loses its case — as I think it will — and its owners dissolve the entire operation to maintain religious purity — would they? — and throw 13,000 employees out of work. I suspect the the Bill Moyers folk would double down on their contempt for religion.

Aggressive prosecution #1: California businessman commercially growing medical marijuana.

Adam Nagourney, in the NYT, gives very sympathetic treatment to Matthew R. Davies — "a round-faced 34-year-old father of two young girls" with "graduate-level business skills" who "paid California sales tax and filed for state and local business permits" and got the advice of many lawyers as he set up an enterprise that plainly and overtly is a felony under federal law. Davies told the NYT:

“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”

Cloak illegal activity? It is illegal activity. Federal law is real. Haven't you heard?!

The right way? Cloaking is the right way when you're committing crimes. With your business education, somehow you were all: Hey, what a smart idea I have — being completely out in the open about breaking the law. Why hasn't anybody else thought of this?

And I love the way the NYT suddenly has a pro-business orientation. Davies deserves special grace under the law because he's using the structure of business and because he's excited about making big profits! Compare that to all the articles anguishing over Citizens United and how terrible it is to respect free speech rights when the speech comes from a place that is structured as a business.

“Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana,” [said a letter from United States attorney for the Eastern District of California, Benjamin B. Wagner, a 2009 Obama appointee.] Mr. Wagner said that prosecuting such people “remains a core priority of the department.”...

“It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”

Yes, and it is mind-boggling that those who argue for the broad interpretation of federal power and who scoff at the idea of the 10th Amendment and reserving powers to the state somehow can't grasp the meaning of their general propositions when they encounter an issue where they prefer the state policy to the federal policy. The NYT and other drivers of elite opinion ought to have to face up to the reality of what their legal propositions entail.

And quite aside from the problem of the allocation of power at the federal and the state levels, how about some consistency about equal justice under the law? Let the law — as written — apply the same way to everyone, whether they have a round face and 2 young daughters or not, whether they've gone to grad school or not, whether they have big visions of massive profits or they are living hand to mouth. If the law is wrong, change the law — for everybody. Don't cry over the people you think are nice — like David Gregory and Aaron Swartz. Nonphotogenic and low-class people deserve equal treatment, and cutting breaks for the ones who pull your heart strings is not justice.

"People keep talking about the role of government in helping people.... but a lot of the credit for helping people recover from the storm should go to businesses."

"It's all too easy to implicitly exclude businesses from our mental category of those who help people."

(Why? Because they're driven by profits? Is that worse than being driven by votes?)

It might be better, because businesses have to offer something that moves you to part with your money. With a scheme of taxing and spending, government detaches the process of handing over our money from our thoughts about whether we think the benefits are worth it.

And by the way, businesses not only help people, they are people.

Back to the first link (which goes to my son John's blog):

I can think of many ways that businesses helped me get through the past 5 days, when the power was out in my apartment and my workplace....

The Egyptian with the "Shut Up America" sign is more like us than you may realize.

"Professor, I hope that you will make your addendum a second post," said the commenter Lyssa. "These rights that are so fundamental are not so protected as we would like to think."

All right. That's what follows. And here's what it was an addendum to — a post about a man in Cairo holding a "Shut Up America" sign and saying "We never insult any prophet — not Moses, not Jesus — so why can’t we demand that Muhammad be respected?" People in the comments at my post assume that protecting blasphemous speech was obviously the American tradition, and the man's request was outrageous. But:

We're not that far from criminalizing blasphemy in the United States, though it seems obvious to educated Americans today that these laws are unconstitutional. Here's a quick summary of the history of blasphemy law in the U.S.

And here's the 1952 case Joseph Burstyn, Inc. v. Wilson where the Supreme Court struck down a New York law that banned showing "sacrilegious" movies. New York's highest court had interpreted the statute to mean "that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule." The U.S. Supreme Court said:

[T]he state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.

My point is: it took a Supreme Court case as recently as 1952, to establish that principle in our country, with its rich free-speech tradition. Lawyers even saw fit at that time to argue that movies shouldn't get free-speech protection at all because "their production, distribution, and exhibition is a large-scale business conducted for private profit."

Oh, wait, the President of the United States today argues that corporations don't have free-speech rights, and many Americans, including highly educated lawyers, are saying the Constitution should be amended to delete those rights.

Let's not be so quick to assume the man with the "Shut Up America" sign is thoroughly alien. The threats to free speech lie within. They always have.