Thursday, July 03, 2014

The Myths of Hobby Lobby

Here is a statement that is objectively false.

In a stunningly misogynistic and regressive decision, five male justices of the Supreme Court of the United States have decided that if you are a woman your boss can force you to adhere to his religious beliefs.

- Kristen Hansen, Blue in a Red County (emphasis supplied).

Now I have no doubt that Ms. Hansen sincerely believes this, but it isn't true. Your boss can't force you to adhere to his religious beliefs. 

The statement is not even close. It is not arguably true. Nor is it metaphorically true. It is not true if translated into any other language on the face of earth. It's not true with fingers crossed behind your back.

It just isn't true.

As a result of Monday's decision in Burwell v. Hobby Lobby, no one will be forbidden to use any form of lawful contraceptive. All the Court said is that the government can't force your boss to pay for them - if he or she has a genuine religious objection to providing them.

In fact, the truth is almost the opposite of what Ms. Hansen thinks it is. The rationale behind Hobby Lobby is that the government cannot enable you to force your boss to follow your religion or ethical views regarding aboritfacients (Hobby Lobby covers all other forms of contraceptive, including the pill, the diaphragm, etc.) You cannot make her pay for things that her religion tells her are wrong - unless there is no other way to achieve a compelling governmentment interest. If, as protestors outside of the Court claimed, your birth control is none of your employer's business, don't ask her to pay for it. (And, yes, some of the owners who objected in this case were female.)

But wait - if your boss doesn't pay for something, doesn't that mean that you won't be able to get it? You'd think the problem with that claim would be clear upon stating it.

But I guess not.

To say that a person is "denied" access to something every time someone else is not forced to pay for it does troubling violence to both the English language and to our notions of individual freedom and responsibility. It would be to say that women (and men; these things are normally needed only when one of them is around and, if he is a man, he ought to be concerned too) have been "denied" access to contraceptives until passage of the ACA's mandate. It would be to say that those who work for employers who are not covered by the ACA or whose employers choose not to provide coverage are "denied" access. Neither is true.

To be sure, most of us would prefer that someone else pay for our stuff. And there are certainly people for whom even the relatively low cost of contraceptives can present difficulties. Given the relatively low cost of these drugs, it's not clear that many of them work for Hobby Lobby (it pays sales clerks twice the minimum wage) or, for that matter, any other employer who provides the relatively expensive insurance mandated by the ACA.  But let's put that aside. The solution is not to run roughshod over those closely held employers with a religious objection. If the government wants people to have these things for free, it can be done - and more honestly done - without forcing religious objectors to pay for it.

The irony here is that, in other contexts, we want "for profit" businesses to conduct themselves in accordance with moral precepts. We want them to be "good corporate citizens" - but apparently only to the extent that those moral precepts are approved by a political majority. 

And there's the problem. The guarantee of religious liberty is not limited to beliefs that "we" approve of. There would, in fact, be no need to protect religious beliefs shared or tolerated by a majority. It is unlikely that any law would ever be passed restricting them.

Now, if you don't like, this, you ought to call for repeal of the Religious Freedom Restoration Act. You can argue that someone's desire or need for free contraceptives (the mandate makes no distinction between the two) trumps someone's else's sincere moral convictions about the sanctity of human life and what it means to be complicit in what he or she believes to be an immoral act. But don't pretend that you aren't the one imposing your moral presuppositions on someone else. The fact that you think you are right makes you no less an authoritarian.

The decision is not misogynistic - "stunning" or otherwise. ("Regressive" is just an epithet meaning "I don't like it.") I understand that control over reproduction is critical for women. (It's actually pretty critical for men too; but there certainly is a difference.) But that doesn't permit us to dismiss the associated moral and religious questions. It doesn't mean that all methods of control are acceptable or need to be financially supported by everyone.

Hobby Lobby objected to four of twenty covered drugs that they believe to be abortifacients, i.e., drugs that its owners believe ends a life that has already begun. I had not thought that we had gotten to the point where opposition to abortion - or an unwillingness to pay for it - can be dismissed as misogynistic. That will certainly come as a surprise to the women who dominate the pro-life movement.


















180 comments:

Dad29 said...

That killing babies pre-birth is a "compelling Government interest" is perhaps more remarkable than the bilious kvetching of Teh Wimmins.

John Mitchell said...

Justice Scalia’s past jurisprudence stands contradictory to his legal rationale in the Hobby Lobby case. In 1990, he wrote the majority opinion in Employment Division v. Smith. Two men from Oregon sued the state for denying them unemployment benefits. They had been fired by their employer for ingesting peyote, which according to them was in line with their religious beliefs as members of the Native American church. The Supreme Court ruled in favor of the company, for the First Amendment “does not require” the government to grant “religious exemptions” from generally applicable laws or civic obligations. Indeed, as Scalia wrote in the 6-3 majority decision, specifying that “[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.”

He penned, “[A]ny society adopting such a system would be courting anarchy…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.”

Fast forward to the Hobby Lobby case. Justice Kagan took Scalia to task during oral arguments. She noted this particular argument offered by Scalia in that 1990 case–judges are unqualified to evaluate the “centrality” of beliefs to a faith, or the “validity” of interpretations brought forth by individuals seeking exemptions from the law.
She expressed the sentiment to Paul Clement, the lawyer arguing on behalf of Hobby Lobby. “Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, ‘I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws.’ And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative. If you look at that parade of horribles — Social Security, minimum wage, discrimination laws, compelled vaccination — every item on that list was included in Justice Scalia’s opinion for the Court in [the Smith case].”

Her remarks are eerily similar to Scalia, who alluded to the same examples in the 1990 case if religious entities are permitted to claim exemptions from generally applicable laws.

Interesting, since he also wrote in that 1990 case “[the court has] never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

While the legal decision was narrowly crafted to afford “closely held businesses their religious right to deny specific contraceptive devices to their female employees”, legal analysts are astounded that, for the first time in American jurisprudence. companies are afforded religious protection under the First Amendment.

So much for strict interpretation of the Constitution by conservative justices! Apparently, conservatives are equal to the task to legislate from the bench!


Waiting for my stalker to respond in 3, 2, 1...

Calhoun said...

Mitchell, The RFRA was passed 1993. Scalia's Hobby Lobby vote is consistent with his past votes in RFRA cases, see Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, for example. If anyone is being inconsistent it is Breyer and Ginsburg.

John Mitchell said...

In Salon yesterday, Reinfeldt makes an excellent case for half of the Supreme Court to be impeached for sedition and perjury: http://is.gd/4QJdsd

Waiting for my deranged anony stalker in 3, 2, 1....

John Mitchell said...

The 5:26 p.m. comment is not from me, but from m deranged anony stalker. He/she/it is mentally ill.


Furthermore, Calhoun, the Gonzales case dealt with a religious organization attempting to justify the use of a drug not historically associated with religious ceremonies. This case is NOT even remotely similar. Nice try!

Calhoun said...

Gonzales v. O Centro was an RFRA case. Try reading it. It was cited in the Hobby Lobby ruling. Try reading that, too.

John Mitchell said...
This comment has been removed by a blog administrator.
John Mitchell said...

Yes, Gonzales was an RFRA case and was cited in the ruling.

You are being purposely deceptive. The RFRA was legislation specifically designed for the free exercise of religion for an INDIVIDUAL OR A GROUP OF INDIVIDUALS, i.e. natural persons, i.e. citizens. Corporations were NOT extended this protection in the law because they are ARTIFICIAL ENTITIES. The majority opinion in the Hobby Lobby case expanded the law to include "closely-held companies"; that is the role of Congress.


I am reasonable certain my stalker will take my name (or another name) and link to yet another pornographic site, or something similar in nature. They have a sickness. I pray for their recovery.

John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

And the deranged anony stalker decided to press "repeat" on the comments button.

John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

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John Mitchell said...

And the deranged anony stalker decided to press "repeat" on the comments button.

John Mitchell said...

And the deranged anony stalker decided to press "repeat" on the comments button.

John Mitchell said...

And the deranged anony stalker decided to press "repeat" on the comments button.

John Mitchell said...

Too much time on your times deranged anony stalker?

Calhoun said...

1 U.S. Code § 1 states "In determining the meaning of any Act of Congress" that “person” includes "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals", therefore the RFRA clearly encompasses corporations.

John Mitchell said...
This comment has been removed by a blog administrator.
John Mitchell said...

Calhoun, that's my deranged stalker anony at 3:45 p.m.


Congress specified exactly in RFRA the language that it was meant for individuals and groups of people.


SEC. 3. FREE EXERCISE OF RELIGION PROTECTED.

(a) IN GENERAL. -- Government shall not substantially burden a PERSON'S exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) EXCEPTION. -- Government may burden a person's exercise of religion only if it demonstrates that application of the burden to the PERSON.


1 U.S. Code § 1 is only applicable if a law does NOT make the specifications.

The majority engaged in legal gymnastics by inferring the intent of RFA was NOT to depart from the Dictionary Act definition of “person" in instances when the law is not specified; in reality, the purpose and spirit of the law was to exclusively entail natural persons, i.e. citizens, not corporations.

Calhoun said...

As Alito noted "Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of “person,” which “include[s] corporations, as well as individuals.” 1 U. S. C. §1...And HHS’s concession that a nonprofit corporation can be a “person” under RFRA effectively dispatches any argument that the term does not reach for-profit corporations; no conceivable definition of “person” includes natural persons and non- profit corporations, but not for-profit corporations."

John Mitchell said...

And Alito is wrong, and he will be impeached. Soon we're going to rid all you christofascists out of the Supreme Court.

John Mitchell said...

Right on time, the deranged anony stalker at 11:15 p.m.!


Calhoun--"As Alito noted "Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of “person,” which “include[s] corporations, as well as individuals.”"

"Suggests", an easy standard, compared to "requires", a more difficult one. That is why the conservatives on the bench here used verbal gymnastics to create rights for artificial entities.

Calhoun said...

It's not "verbal gymnastics", it's recognizing the plain text of the law, which clearly does not exclude corporations from protection.

John Mitchell said...
This comment has been removed by a blog administrator.
John Mitchell said...

Like clockwork, deranged anony stalker returns at 11:55 p.m. Wouldn't be surprised if "Calhoun" is also his "sane" alter-ego.


Calhoun-It's not "verbal gymnastics", it's recognizing the plain text of the law, which clearly does not exclude corporations from protection.

Prior to this case, corporations did not have any religious rights. After Hobby Lobby, they do. The conservative bloc legislated from the bench. It's verbal gymnastics anyway you slice it.

Rick Ensenberg said...

Retract your lie, John Mitchell.

John Mitchell said...

Wow, the deranged anony stalker is now pretending to be "Rick Esenberg" by linking to a domain site!

Rick Ensenberg said...
This comment has been removed by a blog administrator.
John Mitchell said...

LOL! So now there is a link to the site, as if "the professor" would have even commented in the first place on my alleged malfeasance...he has more important things to attend to!

So, "Rick", I pray to God for comment moderation, because you, deranged anony stalker, will be the first to go!

Rick Ensenberg said...
This comment has been removed by a blog administrator.
John Mitchell said...

"You're done here, John Mitchell. I have referred you to the authorities for peddling illegal pornography on this site."

If you compare my IP Address to the deranged anony stalker, they are different. I have NO worries. Moreover, the REAL Rick Esenberg has not commented on this blog for months. Besides, he would simply delete the offending comments. He is a champion of the First Amendment.

The only person "peddling", i.e. promoting (in this context), is the deranged anony stalker. For he/she/it, linking to porn sites on a blog is NOT a crime, it only demonstrates a lack of character.

Rick Ensenberg said...

John,

I have researched the logs, and the IPs are the same. You're making a mockery of my blog, and it's time you stop. While you're at it, research the First Amendment, since you seem to be so clueless about it.

- RE

John Mitchell said...

"I have researched the logs, and the IPs are the same."

No, the IP addresses are not the same, "professor".


So, time to "ban me". I will be waiting...

Rick Ensenberg said...
This comment has been removed by a blog administrator.
John Mitchell said...

Do what you will, "Professor". I will continue to post from my only computer in my house until I am "banned".

Of course, when I comment again on a new post in the future despite being "banned", then the "professor", i.e. the deranged anony stalker, will claim I am posting from a different computer and/or IP Address, thus continuing to "harass" and "defile" this blog.


I'm too smart for you, "professor". Continue with your game.

So, instantly ban me. If you don't ban me within the next ten minutes, and I cannot subsequently post, you are NOT the "professor".

John Mitchell said...
This comment has been removed by a blog administrator.
John Mitchell said...

Poor deranged anony stalker at 12:10 p.m., your plan got foiled, and so you resort to your old tricks again.

Calhoun said...

Idiot.

John Mitchell said...

Hey, Calhoun...here's your argument destroyed in 30 seconds by Sally Kohn:

http://is.gd/dlu8Fw

I'm sure that deranged anony stalker will be by shortly to try and discredit this, or that jackass baldheaded "professor," who can't even figure out how to work his blog.

John Mitchell said...

Poor deranged anony stalker at 1:06 p.m., your plan got foiled, and so you resort to your old tricks again.

Anonymous said...

Well Shark, as long as Hobby Lobby is a-ok with providing insurance for Viagra, there's nothing amiss, right?