Obamacare

Contraceptives, Corporations, and Obamacare

Sebelius v. Hobby Lobby Stores Inc. reaches the Supreme Court.

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Do for-profit corporations get to enjoy the free exercise of religion? That question lies at the heart of next Tuesday's Supreme Court battle over the so-called "contraceptive mandate," the provision of the Patient Protection and Affordable Care Act requiring most employers to cover birth control in their health care plans.

According to Hobby Lobby Stores Inc., an arts-and-crafts retailer owned and operated by a family of evangelical Christians, the contraceptive mandate forces both the business and its owners to violate their religious scruples by providing access to four methods of birth control they see as equivalent to abortion, such as the emergency contraceptive Plan B.

That requirement, Hobby Lobby maintains, violates the Religious Freedom Restoration Act (RFRA), a 1993 law signed by President Bill Clinton which says the government may not "substantially burden a person's exercise of religion," unless it has a "compelling" justification and has used "the least restrictive means" available. The contraceptive mandate, Hobby Lobby told the Supreme Court in its main brief, "is a textbook 'substantial burden' on religious exercise under RFRA."

The mandate's defenders take the opposite view, arguing that Hobby Lobby should lose because a for-profit corporation is unable, by definition, to exercise religion. As David Gans of the liberal Constitutional Accountability Center put it, "corporations cannot pray, do not express devotion and do not have a religious conscience." Therefore, he argued, "the justices should reject the notion that a corporation is a person that exercises religion."

But that argument is too simplistic. Churches, who are themselves non-profit corporations, also fit the above description. Yet no court would ever rule that a church does not fall under the protection of the First Amendment's Free Exercise Clause because the church itself "cannot pray."

Nor is it unusual for the courts to recognize an exercise of religion by a for-profit enterprise. Indeed, the entire kosher food industry offers a ready example. In 2002, for instance, the U.S. Court of Appeals for the 2nd Circuit ruled in favor of Commack Self-Service Kosher Meats, Inc., a corporate entity based in Long Island, New York, which had challenged the state's narrow definition of "kosher" on constitutional grounds, including the Free Exercise Clause.

In short, when it comes to the legal argument over corporations and the free exercise of religion, Hobby Lobby has a strong case.

But the federal government has also some important precedent on its side. Most notably, in the 1982 case of United States v. Lee, the Supreme Court ruled unanimously against an Amish farmer who refused to file Social Security taxes for his employees on the grounds that his faith required the community, not the government, to provide support for the elderly.

The Supreme Court agreed that this was a valid religious objection, but then voted against the man anyway. "Compulsory participation in the social security system interferes with [the Amish's] free exercise rights," the Court acknowledged, but "not all burdens on religion are unconstitutional." Because Social Security is a "comprehensive national program" that serves "an overriding governmental interest," Lee declared, the restriction on religious liberty was permissible. Furthermore, the ruling held,

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.

The outcome of Hobby Lobby may well turn on the Court's application of that 1982 decision. If a majority of the justices view the Patient Protection and Affordable Care Act as an equally "comprehensive national program" serving an "overriding governmental interest," then the contraceptive mandate will survive even if the Court declares it to be a substantial burden on the free exercise of religion.

To be sure, that result will not satisfy the many religious and political conservatives who have lined up in support of Hobby Lobby's position. But if the Supreme Court is looking to make a broad statement on behalf of religious liberty while at the same time leaving the federal government's vast regulatory power in place, the justices have a roadmap to follow.

Oral argument in Sebelius v. Hobby Lobby Stores, Inc. is scheduled for March 25, 2014.

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  1. If for profit corporations can’t have “religious views” consistent with their duty to shareholders, then they can’t have “social justice” or “environmental” views consistent with those duties either.

    This whole case shows how arrogant and batshit insane the American left has become. Think about this for a moment. Leftist corporate law professors are arguing that a corporation has a singular all encompassing duty to make money for its shareholders and nothing else. The very same people who have spent 50+ years preaching “corporate social responsibility” are now claiming profit uber alles!!!

    1. The Left has no intellectual history, therefore what they have argued yesterday has no bearing on what they argue today.

      1. The left, especially leftist academia, has no intellectual basis to begin with. Leftist literature is merely a cannon of wishful thinking, routinely debunked theory and a variety of intellectual tropes to lend legitimacy.

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  2. The contraception case is different than the Lee case for several reasons:

    1. In Lee, the Amish are required to support their elderly, but they are not morally prohibited from paying SS Taxes. In the contraception case, Hobby Lobby is being compelled to finance an activity that is explicitly forbidden by their faith. Ther’es a huge difference between being forced to pay for something you don’t need, because your religion provides it in a different way, and being forced to pay for something that is explicitly prohibited by your faith.

    2. There is only one way that an employee can collect SS – and that is if he has paid into the system, which includes his employers matching payroll taxes. (Technically, you could work as an independent contractor and pay them yourself, but there are legal restrictions on employers doing that.) By comparison, not covering someone’s birth control under insurance does not render it impossible for employees to obtain birth control. Birth control is available from multiple sources, the government doesn’t have a monopoly on it.

    1. the government doesn’t have a monopoly on it

      BUT THEY’RE WORKING ON IT…

      1. They’ve just subcontracted the monopoly out to a couple of guilds.

    2. You are right Hazel. The Amish farmer in Lee paid taxes. He had no religious objection to paying social security taxes. He just claimed he didn’t need to since his community already took care of the elderly.

      Further, the Lee case involved taxes. The Hobby Lobby case involves private transactions. It one thing to say the government has a compelling interest in making everyone pay their taxes. It is quite another thing to say the government has the same compelling interest in making everyone engage is a particular private transaction.

    3. Ther’es a huge difference between being forced to pay for something you don’t need, because your religion provides it in a different way, and being forced to pay for something that is explicitly prohibited by your faith.

      In a statist ‘matter of fact’ sort-of-way, yeah. In a zealous libertarian sort-of-way, it doesn’t matter if it’s violating the 1st Am., honoring the Lee decision, or violating the RFRA, it’s all extortion through legal force.

      1. Legal force isn’t necessarily bad. It’s the illegal monopoly of force that states exercise that make it extortion.

        Taxes are specifically prohibited by any logically consistent notion of morality, but that’s not good enough. Moral qualms just aren’t valid unless you claim those moral qualms were handed to you a magical superbeing.

        1. states do not extert a monopoly on force, they exert a monopoly on judgement, on defining and deciding when the final force is justified. The only monopoly on force is a monopoly on PUNITIVE force

          the set up is justified because you are free to leave the country you’re in. Of course there are limits to that notion

  3. To be sure, that result will not satisfy the many religious and political conservatives who have lined up in support of Hobby Lobby’s position.

    So only religious and political conservatives support Hobby Lobby? Libertarians don’t support Hobby Lobby and would be happy with such a result?

    If they wouldn’t be, why Damon do you bother with the “many religous and political conservatives”? Wouldn’t everyone who supports Hobby Lobby and indeed everyone who supports the right not to be compelled by the government to do things against your religion be equally unhappy?

    Is that just a “I support Hobby Lobby but am not one of those icky religious conservatives” qualifier or are you down with the contraception mandate?

    1. I’m sure that, in a marijuana article, he’d say something on the lines of “to be sure, criminalizing dope won’t satisfy the many hippies and counterculture tie-tied types who have lined up in support of the legalization position.”

    2. I read it differently. I took it to mean that the Lee decision offers the Court a way to give lip service to religious freedom while allowing the Regulatory State to have its way.

  4. Hmm… “not all burdens on religion are unconstitutional” and “an overriding governmental interest”…

    The Court is so very wrong here. There is no “overriding governmental interest” that trumps ANYONE’S rights. Hence the word “unalienable” and the phrase “Congress shall make no law”.

    1. I wouldn’t go that far, but I would say that government interests only prevail in rare cases, like human sacrifice.

      1. Human sacrifice violates someone’s rights (well… probably). Therefore, it is within the scope of govt, which is to protect our rights (according to the 2nd and 3rd sentences of the Declaration of Independence). In fact, if govt’s purpose is not to protect our right to Life, then I fail to see what purpose it has.

        “Overriding govt interest” is a fancy way of saying, “Govt wants to do ‘A’ even if it violates your rights. We just don’t care.”

  5. Question, how do the Amish retire? It’s not like they hit 65 and stop raising barns. Don’t they pretty much do what the rest of the country has been doing with the failure of Soc. Sec.? Where the 20-40 yr. olds do the chop wood and raise barns, 41-60 yr. olds feed and care for the livestock, and the 60-80+ yr. olds shuck corn, peel potatoes, and churn butter?

    1. They sit at home and watch the space in the room where a TV ought to be. Occasionally, they yell out into the kitchen, “goodwife, wilt thou go pick some barley and maketh me some beer?”

      1. And the goodwife sayeth, “getteth it thyself, thou sluggard, I am reading Scripture!”

  6. I believe the deeper problem is that government has created it’s own authority to compel organizations to affirmatively do something that individuals could acquire on their own at their choice. Will they compel companies to provide housing or food or retirement? We can argue the legal rulings til the cows come home. But in my opinion the government is there to protect borders, protect our rights and to some extent represent society in protecting the economic or physical environment – not “creating a just society” or some other statist bullshit.

    1. Yeah IMO it’s sad to see it comes down to this argument as a last stand of sorts. The Feds usurped authority not given to them via the Constitution whenever they mandate a company to provide a product or service as part of said companies services. It should be up to each insurance provider to decide what they offer as part of their service.

    2. Well said, Greg. Well said.

    3. Exactly right Greg, the government should not mandating this for any business, but I think us non-religious types are fucked. I wish the religious people luck in their fight, they are in the right. Freedom of religion trumps some imaginary right to have your birth control bought by a third party that you have voluntarily associated with.

  7. Should for-profit corporations specifically have their religious freedom protected? I know, the Reason Foundation can sponsor a bill to that effect, in some sympathetic state like Arizona. Wait, they had a bill in Arizona but several Reason staffers denounced the bill’s sponsors? Hmmmm….

    1. To be completely fair, that bill was redundant and implicitly aimed at denying gays the right to buy groceries or get access housing throughout all of the state of Arizona.

      I’m sure the Christians haters that crafted the bill had no notion of being persecuted by the state.

      1. Uh, have you read the bill?

      2. Anyway, the bill can’t be both redundant *and* throw gays starving into the streets.

        1. Implicitly! The words mean nothing. If the bill were about side walk specifications it could imply a triple redundant ban on invisible pink unicorns….

          Erp, I may have left off the sarcasm tags too. Damned semantics.

          1. “To be completely fair, that bill was redundant and implicitly aimed at denying gays the right to buy groceries or get access housing throughout all of the state of Arizona.”

            It explicitly denied a positive right to buy groceries or obtain housing from a particular business for many reasons, including being gay.

  8. Should for-profit corporations specifically have their religious freedom protected? I know, the Reason Foundation can sponsor a bill to that effect, in some sympathetic state like Arizona. Wait, they had a bill in Arizona but several Reason staffers denounced the bill’s sponsors? Hmmmm….

  9. If Hobby Lobby locations employ less than 50 people, they could just drop healthcare for their employees altogether.

    1. They can do that now. But then they’d be hit with the punishment of a “tax” and the gov would take that money and redistribute it to people inclined to vote for them. It doesn’t matter how we try to reorient government, the issue is that it exceeds its authority and is killing the economy.

  10. I shouldn’t need to cite superstitious reasoning to get an exemption to the mandate. Business owners who oppose the mandate for empirical reasons have no grounds for exemption, but if I say that my invisible friend in the sky told me not to accept the mandate, well then that’s just peachy. That double-standard seems more befitting a society of cavemen, like statism in general…

    1. Personally, I think you’re interpreting it the wrong way.

      The freedom of religion means the burden of proof and/or assumption of guilt lies (or should) with the gov’t. Telling them FYTW can have any reasoning behind it from genies in lamps to actuarial reports, land surveys, and legal precedent.

      The TW is subordinate to the FY.

    2. If the govt can’t justify an infringement on religious freedom as the least restrictive means of carrying out a compelling state interest, then the govt shouldn’t be doing it.

      The religious aren’t saying “impose these policies on other people, only exempt me!” They don’t want the policy enforced on *anyone,* but their secular brothers and sisters let them down and adopted the policy anyway.

      Two key points about religious-freedom claims:

      -There’s a specific constitutional protection of religious freedom.

      -Usually, religious dissenters don’t have the option of grumbling about the regulation but complying anyway, which is the course people without religious objections will generally take. The religious are generally bound by their consciences to defy the regulation with all the harsh consequences that entails, including when applicable fines and prison. The case for protecting these people is arguably more urgent.

      1. Good points.

    3. I see your point. Unfortunately, given the current state of constitutional law, the argument that “the government has no legitimate basis for forcing me to provide my employees with something at least 50% of them will never have any use for” has no chance of success, even though it is the most sensible reason for opposing the contraception mandate.

    4. Sorry that freedom of religion is constitutionally protected right. We should not need these types of protections because the government should not be making these kind of mandates, but you fight with what weapons you have.

  11. Why is a religious conviction more important than a personal one? I am not a religious person, but I object to the immorality of abortion. Why is my moral objection of lesser importance than a religious one?

    I also should not be required to pay for something as voluntary as birth control. It is a choice, not a requirement. You pay for your own elective surgery.

  12. Why is my moral objection of lesser importance than a religious one?

    Because the constitution only protects your right to follow your conscience if you believe you have God’s endorsement.

    1. Celebrity endorsements are indeed powerful.

  13. “The mandate’s defenders take the opposite view, arguing that Hobby Lobby should lose because a for-profit corporation is unable, by definition, to exercise religion. As David Gans of the liberal Constitutional Accountability Center put it, “corporations cannot pray, do not express devotion and do not have a religious conscience.”

    Ah more of the corporations don’t have rights stuff. I am sure the New York times and Huffpo will be pleased to know they have no right to publish their material and can be shut down at any time. Note to purveyors of specious reasoning. The first amendment is a restriction on what congress can do. It makes no distinction about whether speech is funded by a corporation or individual. If it abridges speech its illegal regardless of source.

  14. Obviously, Hobby Lobby should be free to provide what insurance, or not, they see fit. Obviously employees who voluntarily chose to work there can accept those benefits, or find another job. If they’re particularly inspired, they can found a competing company with more progressive values and drive Hobby Lobby out of business, if that is what they want to do. But getting the government to pull its proverbial gun so that you don’t have to do what women have done for decades which is buy your own birth control, that is wrong.

    Also, it is obviously different from the Amish case. The government could, for instance, pay for birth control for every woman in the country out of tax revenues. Hobby Lobby could then sue and say “We shouldn’t be forced to pay taxes because it’ll go partially toward birth control.” Then the cases would be the same, and Hobby Lobby would lose.

    But that has not happened here. The government is getting between the private voluntary relationship between employer and employee. They’re not saying Hobby Lobby has to pay a tax, they’re essentially telling Peter to buy something for Paul. Which is why Hobby Lobby is in the right.

    Freedom of religion is a two way street. Jesus people shouldn’t be able to tell gay people they can’t get married, and progressives shouldn’t be able to force Jesus people to do things against their religion. Hypocrites on all sides, except us Libertarians in the middle, aren’t we smart and enlightened?

  15. Right down to birth control–someone else must pay.

    Let’s look at the basic tenet of Marxism. First there is the government taking over means of production. And what is the government attempting to do? Control the providers of healthcare. Mandate all of the policies of private insurance companies. Other words the means of our production.

    Second, and here is the clincher. In ACA one man pays more based on his success than another man who is subsidized by the government tax dollars. One’s amount paid is according to need. Where have I heard that expression “according to need” before? Ah that’s right?from Karl’s manifesto. And better yet Barry wants to expand Medicaid giving great access to those who will not pay at all. Off of our tax dollars while the producer pays more for his own premiums.

    But ACA isn’t Marxist. Nope not at all. I forgot, one man paying for another is a capitalistic philosophy. Silly me.

    You don’t need my fiction to predict a collapse of our nation. We already have it foreshadowed by the greatest and most accurate sage. That would be history. And the funny thing about history is when he lectures us he tends to repeat himself at the podium.

    Charles Hurst. Author of THE SECOND FALL. An offbeat story of Armageddon. And creator of THE RUNNINGWOLF EZINE

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