Monday, July 14, 2014

More misinformation on Hobby Lobby

Yesterday's Milwaukee Journal Sentinel published a column by Leonard Pitts criticizing the Hobby Lobby decision. It stands in substantial need of correction.

Pitts writes:
I once saw a protest sign to the effect that if men gave birth, contraception would be bacon-flavored and dispensed from vending machines. Can anyone argue the truth in that?

I can. Pitts needs an editor, because contraception is dispensed from vending machines. At least it is in men's rooms. I can't speak for the women's. Birth control pills, as far as I know, are not because they must be filled by prescription. But the FDA apparently allows Plan B by vending machine. My guess is that, if a strong medical case could be made for over the counter availability of traditional birth control pills, there would be wide spread support.

Pitts writes:

Would we even be having this debate if some company has a religious objection to Viagra - or vasectomies?

We probably would not be  - but not for the reason he thinks. We wouldn't be having it because Obamacare does not compel anyone to cover Viagra or vasectomies. Most insurance plans do cover them but, then again, most cover contraception as well - and did so before there was a mandate.

If government did mandate coverage of vasectomies, there may well be some companies - say those run by very traditional Catholics - who might object. The claim of such objectors under RFRA would be subject to the same analytic framework as Hobby Lobby's.

Pitts writes:
If it is too much to ask Wheaton College to fill out a form because an employee will be "triggered' to buy contraception on her own, does the school also have the right to scrutinize and approve other purchases made with the salary she earns from them?
Not a chance. There is a difference between being made to pay for something - or to participate in its purchase - and to seek to control the use someone makes of an employee's money after it has been paid to her and becomes "hers." If Pitts can't see that, be needs to try harder.

Pitts writes:
In its rush to confer personhood on organizations and constrain women's choices, the court steers us toward a day in which corporate rights would trump human rights and you could no longer take for granted that you would be served by  a given business without first checking to make sure that you didn't offend the owner's religious sensibilities.
The only rights recognized in Hobby Lobby were human rights - the rights of the humans who built and own the company. I presume that Pitts believes that the humans who own the corporation he works for - the Miami Herald - have a First Amendment right to publish his work.

The question for the court was how to reconcile conflicting claims of right by human beings. The idea that this conflict can be made to go away because some humans are exercising those rights in a corporate form or in the course of a commercial pursuit is preposterous. It's still there and still must be addressed.

In Hobby Lobby, the Religious Freedom Restoration Act provided the framework for resolution of that conflict. As the Court made clear, that does not mean that any claim of religious offense will prevail.

Finally, Pitts is upset because the Hobby Lobby majority suggested that an  accommodation for nonprofits that required the insurers of objectors to provide contraceptives for free would be a less restrictive way to provide free contraceptive to employees of for profit companies like Hobby Lobby. But, several days after the Hobby Lobby decision, he thinks the Court "judged" that provision to be an unreasonable burden because it issued a temporary injunction freeing Wheaton College from having to fill out certain paperwork in connection with that accommodation.

Here Pitts gets into the legal weeds and entangles himself. It is not true, as he writes, that the Hobby Lobby court held that this accommodation would be legal as applied to religious nonprofits. It simply said  that it would be one less restrictive way to accomplish the government's objective of providing free contraceptives for employees of for profit companies. It did not say that it was the least restrictive way - which is what RFRA requires.

 His upset is premature. The court has not made a final decision on the Wheaton College case. It has only freed Wheaton from compliance - until its claims can be adjudicated. The injunction clearly indicates that a majority of the Court believes that Wheaton has a serious case, but that does not mean that Wheaton will win.

Cross posted at Purple Wisconsin


John Mitchell said...

You're completely wrong, Professor.

John Howard said...

Question for you: Does the HobbyLobby decision mean that people have a right to implant a cloned embryo, even if a state (like Missouri or Massachusetts do) or the Federal government prohibits implanting cloned embryos? Or is stopping cloning a compelling enough reason to overcome someone's religious freedom to be exempt from the ban?

John Howard said...

And could you comment on my proposal to resolve the marriage debate with a federal law that prohibits creating a human being except by joining a sperm of a man and an egg of a woman, and prescribes the effect of marriage as approving and allowing the conception of offspring using the couple's own gametes? I think both of those laws are needed and constitutional. What do you think?

Hegemonkey said...

Why bother with responding to anything Pitts writes?

John Mitchell said...

Word Of Caution--There will be a deranged anony poster who will take my screen name and link to unseemly sites and/or trash talk commenters who respond to my posts. He/she/it engaged in the same conduct at Dad29 that led to comment moderation there.

The comment at 2:22 p.m. is NOT from me.

Leave it to the professor to double down of legal ignorance; I thought law is his wheelhouse, more like training wheels!

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].”

John Mitchell said...

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!

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.

John Mitchell said...
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Anonymous said...

One of you John Mitchell's is completely confused. (The other's just annoying.) The question of what the Constitution compels is not the same as what Congress MAY do. And Congress itself included corporations in RFRA's protections. The law expressly states that corporations are included whenever they use the term "person". It was the liberals of the Court who were trying to make an EXCEPTION to that rule that for some reason, "for-profit" corporations aren't included, rather than applying the rule as written.

John Mitchell said...

Deranged anony stalker alert at 11:33 p.m.

To anony, 6:31 a.m.

"The question of what the Constitution compels is not the same as what Congress MAY do."

Actually, it is. Congress is compelled to adhere to the Constitution in their effort to pass legislation.

"And Congress itself included corporations in RFRA's protections. The law expressly states that corporations are included whenever they use the term "person"."

Not quite. Those members of Congress who were incensed with the Hobby Lobby decision introduced a bill to explicit state that corporations are NOT covered by the RFRA, which had been the original intent of the legislation in the first place until conservatives legislated from the bench.


(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.

John Foust said...

I'm looking forward to the discussions of the difference between personal belief and religious belief, and what constitutes a valid religious belief, and why a non-religious belief isn't good enough.

John Mitchell said...
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Anonymous said...

Yes but you're missing the part where Congress expressly included a corporation in the definition of "person". Congress, not the Court.

As to the first question, what the Constitution compels is a floor - a minimum. Congress may go above that. Congress may not go beyond what the Constitution prohibits, but within those two lines there is a great deal Congress may do. To be specific, although Smith says that the Constitution does not COMPEL government to provide religious exemptions from generally-applicable laws, it does not say that Congress MAY NOT provide religious exemptions from generally-applicable laws. Congress's ability to do that was not even at issue in Hobby Lobby. What was at issue was whether, in defining "person" to include corporation, Congress intended to exempt for-profit corporations even though it hadn't written such an exemption into the law.

John Mitchell said...

Deranged anony alert at 10:54 p.m.

To Anonymous 6:21 a.m.--"Yes but you're missing the part where Congress expressly included a corporation in the definition of "person". Congress, not the Court."

Had the original intention been to include corporations in RFRA, members of Congress would have specified. Conservatives on the Supreme Court perversely interpreted the law to suit their own narrative.

"What was at issue was whether, in defining "person" to include corporation, Congress intended to exempt for-profit corporations even though it hadn't written such an exemption into the law."

Refer to the exact language in the statute. It says "persons". Even Justice Alito stated that corporate personhood is "legal fiction"!

The Founding Fathers clearly understood the power that corporations possessed, as evident by the shenanigans of the East India Trading Company. Trade-dominance by that corporation aroused the gravest of concerns by the Founding Fathers, and as a result, the framers took it as a given that corporations could be comprehensively regulated in the service of the public welfare by the government, that their ECONOMIC RIGHTS would be conferred through charters and acts of Congress.

Note that the founding fathers intended political free speech for NATURAL PERSONS. John Adams, speaking for his brethren, stated “Banks have done more injury to the religion, morality, tranquility, prosperity, and even wealth of the nation than they can have done or ever will do good.”

So, you honestly believe the Founding Fathers would disregard their own position by implying that corporations equate to real people? NO! Rights were designed and conferred to American citizens, real people.

The conservative justices clearly legislated from the bench.

John Mitchell said...
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John Mitchell said...
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