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Author Topic: Hobby Lobby SCOTUS Contraceptive Case
Mynnion
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Adam-To play devils advocate here. Are you saying that a religious organization is not entitled to religious freedom? Should the church or school of "I Hate Gays" be required to hire one? Obviously this is an extreme example but I know that many religious organization have standards that require employees to live within a certain set of guidelines. Is this wrong? When we have a conflicting beliefs and values whose are valid? No answers just questions.
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Adam Masterman
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quote:
Originally posted by Mynnion:
Adam-To play devils advocate here. Are you saying that a religious organization is not entitled to religious freedom? Should the church or school of "I Hate Gays" be required to hire one? Obviously this is an extreme example but I know that many religious organization have standards that require employees to live within a certain set of guidelines. Is this wrong? When we have a conflicting beliefs and values whose are valid? No answers just questions.

Actually, Civil Rights laws have already defined most of these boundaries. Title II of the 1964 Act states that:

"All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin."

( full text of Title II)

Plenty of space carved out in that law for religious groups; no church has ever been forced to ordain women, admit blacks, or anything else. Its been our civic benchmark for half a century.

This new ruling cites the 1st amendment as granting corporations an exemption from the Affordable Care Act; a constitutional provision trumping a piece of federal legislation (the Roberts court has already ruled that corporations enjoy full 1st amendment protection). By this logic, the 1964 Civil Rights Act is also non-binding when it conflicts with a person's "deeply held religious belief". As I said, Civil Rights in America just became optional; that was not an exaggeration.

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Seneca
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If liberals are so upset with this court ruling then I'm sure many of them will get on board for an amendment allowing the states to override SCOTUS decisions by 2/3 majority vote.
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Adam Masterman
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In addition to the Civil Rights Act, btw, the Americans with Disabilities Act is similarly compromised. The kicker here is that the Federal Government is explicitly prohibited from making judgements of value on separate religions. We can't say "your fundamentalist cult's beliefs are too radical and bigoted to allow an exemption," as that would be favoring one faith over another. Very soon, courts are going to be ruling on an expanding number of these cases, as every kook in the country realizes that the SC just gave a blanket out to every anti-discrimination law out there. Lower courts are going to have to approve these cases based on this precedent, and an increasing number of increasingly barbaric rulings are going to get dumped on this court. Ginsberg noted this very explicitly in her dissent; plenty of very valid faiths in this country take issue with vaccines, blood transfusions and other essential services. We now have to let them deny this coverage to workers. As I noted earlier, the target here was, without question, the ACA. Civil Rights are collateral damage. [Frown]
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Mynnion
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Thanks Adam-But isn't that exactly what your post was pointing at? Religious organizations wanting more robust rights to protect them from hiring LGBT employees?

Seneca-What good would that do? Since almost every major issue in this country is divided close to the middle I see the likelihood of any SCOTUS ruling being overturned slim to none.

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D.W.
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It's only divided close to the middle because people see rulings in terms of "Did my side win?" not as "What does this mean moving forward?"
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Adam Masterman
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quote:
Originally posted by Mynnion:
Thanks Adam-But isn't that exactly what your post was pointing at? Religious organizations wanting more robust rights to protect them from hiring LGBT employees?

Seneca-What good would that do? Since almost every major issue in this country is divided close to the middle I see the likelihood of any SCOTUS ruling being overturned slim to none.

Sorry; the exemption you mention is already in the law:

"There are partial and whole exceptions to Title VII for four types of employers:

Federal government; (Comment: The proscriptions against employment discrimination under Title VII are now applicable to the federal government under 42 U.S.C. Section 2000e-16)
Federally recognized Native American tribes
Religious groups performing work connected to the group's activities, including associated education institutions;
Bona fide nonprofit private membership organizations." (emphasis mine)

Basically, if you are a church, and want to not hire a black guy to be your bookkeeper, you are free to discriminate. If you are a massive church and want to own for-profit businesses, those businesses need to follow the law. Good, sensible guidelines written 50 years ago, and thrown out the window yesterday.

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Adam Masterman
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quote:
Originally posted by D.W.:
It's only divided close to the middle because people see rulings in terms of "Did my side win?" not as "What does this mean moving forward?"

Sadly, yes. There were a lot of religious groups, including several prominent evangelical groups, who filed briefs arguing against Hobby Lobby in this case. Many have noted that widespread narrowing of people's access to contraceptives is going to spike the abortion rate (duh). And many others realize that religious freedom and special treatment for popular faiths aren't even remotely the same thing.
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D.W.
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Are there methods in place for the SC to "reconsider"? Can they for instance accept a similar case arguing against it and make a counter decision which strikes the previous ruling or can they make changes without some catalyst case?

Not suggesting it's likely but are their provisions for it?

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Pyrtolin
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quote:
Originally posted by Mynnion:
Pyrtolin-
quote:
Except the issue is not with post conception birth control, because all of the methods listed are pre-conception. The idea that they're abortifacients was part and parcel of the misinformation that HL presented in making its case.
This is only partially true. IUDs prevent conception about 99% of the time with implantation being prevented in the majority of that 1%. I am not saying this justifies HLs position is justified in any way. Only that they may view that 1% as relevant.
Except it's not, because implantation is required for conception. FertIlized eggs don't implant more often than they do; the threshold for conception is only reached if the egg implants and stays implanted king enough for an actual pregnancy to start.
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AI Wessex
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I'm hoping a Christian Scientist refuses to insure his/her workers for blood transfusions. That would be an impossible position for the SC to support.
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Pyrtolin
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quote:
Originally posted by Mynnion:
Pyrtolin-
quote:
Except the issue is not with post conception birth control, because all of the methods listed are pre-conception. The idea that they're abortifacients was part and parcel of the misinformation that HL presented in making its case.
This is only partially true. IUDs prevent conception about 99% of the time with implantation being prevented in the majority of that 1%. I am not saying this justifies HLs position is justified in any way. Only that they may view that 1% as relevant.
Except it's not, because implantation is required for conception. FertIlized eggs don't implant more often than they do; the threshold for conception is only reached if the egg implants and stays implanted king enough for an actual pregnancy to start.
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Adam Masterman
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quote:
Originally posted by D.W.:
Are there methods in place for the SC to "reconsider"? Can they for instance accept a similar case arguing against it and make a counter decision which strikes the previous ruling or can they make changes without some catalyst case?

Not suggesting it's likely but are their provisions for it?

They could counteract this decision tomorrow if they wanted, on an identical case. They aren't strictly bound by precedent, only in tradition and as an ethical commitment to good practice (see "settled law" and why justices are supposed to respect it).

Its, as you say, unlikely. They'd essentially be admitting that they were wrong, which politicians seem to have trouble with. This current court is bought and paid for (literally); the best we can hope for is the consequences of their bad decisions to anger large enough numbers of Americans that the winds shift. "Corporations are people" may require a constitutional amendment; the only silver lining here is that this court is awful enough that it may provoke one.

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Adam Masterman
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quote:
Originally posted by AI Wessex:
I'm hoping a Christian Scientist refuses to insure his/her workers for blood transfusions. That would be an impossible position for the SC to support.

I'm hoping that people start filing these cases specifically to bring this to a point now; the ACLU should give free counsel to anyone who objects to any medical procedure. Make the court lie in the bed they've made, sooner rather than later.
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Greg Davidson
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I read somewhere the very good point that this is not a Supreme Court interpretation of the Constitution, it is their interpretation of the provisions of 1993 Religious Freedom Restoration Act. Change the relevant portions of (or eliminate) that law and the decision becomes moot, and would need to be re-adjudicated (albeit, with this current decision as a relevant precedent)
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scifibum
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Congress could even pass a law exempting ACA from RFRA. Although I'd rather see a repeal of RFRA, as I don't think it's needed given the 1st amendment and simply muddies the waters.
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MattP
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quote:
I'm hoping a Christian Scientist refuses to insure his/her workers for blood transfusions. That would be an impossible position for the SC to support.
The majority opinion specifically mentions that this would not be the same. A lot hinged on their opinion that the contraceptive mandate was not the least burdensome method of achieving the government's aim to provide universal contraceptive coverage. It is also restricted *only* to "closely held corporation" which, granted, covers some pretty massive companies. Still, it's not a universal exemption.

I'm not happy with the ruling but it was much more narrow than people tend to understand and did leave open some ways to correct the problem. One of them is to extend the current requirement for insurers to provide free contraception coverage to individuals who work for genuine religious organizations to also include closely held corporations that express religious objections. That rule was added by the Department of Health and Human Services under their administrative authority and they could update that rule fairly easily to accommodate this ruling.

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Adam Masterman
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quote:
Originally posted by MattP:
quote:
I'm hoping a Christian Scientist refuses to insure his/her workers for blood transfusions. That would be an impossible position for the SC to support.
The majority opinion specifically mentions that this would not be the same. A lot hinged on their opinion that the contraceptive mandate was not the least burdensome method of achieving the government's aim to provide universal contraceptive coverage. It is also restricted *only* to "closely held corporation" which, granted, covers some pretty massive companies. Still, it's not a universal exemption.

No, but it does extend immunity from anti-discrimination laws to a larger group of corporations; 60 million Americans currently work for "closely held corporations".

quote:
I'm not happy with the ruling but it was much more narrow than people tend to understand and did leave open some ways to correct the problem. One of them is to extend the current requirement for insurers to provide free contraception coverage to individuals who work for genuine religious organizations to also include closely held corporations that express religious objections. That rule was added by the Department of Health and Human Services under their administrative authority and they could update that rule fairly easily to accommodate this ruling.
The danger here isn't simply the barrier to health care it provides; its the precedent that religious freedom entails the right to "clean hands" in a very broad sense (and yes, I'm referencing Pontius Pilate there). Taxes are the obvious example; never has it been understood that religious freedom exempted one from paying for, directly, acts of government that are often orders of magnitude more egregious than taking a birth control pill, even to Catholics. This whole idea of "my religion doesn't allow me to participate" was manufactured, and recently. Hobby Lobby itself covered contraception itself right up until the moment they were approached by right wing lawyers and asked to sue. And we've gone over 200 years without anyone being given a pass on paying for wars, the execution of criminals, and a whole host of practices strictly forbidden by various faiths. This "narrow" ruling creates a protected class of people who don't have to respect the civil rights of others; its literally an attack on religious freedom, and a devastating one. The language in the decision about narrow scope indicates that the justices were well aware of that fact, and tried to hedge their bets. Its worse, in a way, because they more or less claimed that they wouldn't do the same for other religious objections, but it also creates a gulf in the law, where religion sometimes lets you ignore the law, with no consistent test for when. This court is often a corporate tool, but never have they been so sloppy.
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TomDavidson
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To be fair, I think they've been this sloppy a couple other times.
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Mynnion
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PYR-
quote:
Originally posted by Mynnion:
Pyrtolin-
quote:
Except the issue is not with post conception birth control, because all of the methods listed are pre-conception. The idea that they're abortifacients was part and parcel of the misinformation that HL presented in making its case.
This is only partially true. IUDs prevent conception about 99% of the time with implantation being prevented in the majority of that 1%. I am not saying this justifies HLs position is justified in any way. Only that they may view that 1% as relevant.
Except it's not, because implantation is required for conception. FertIlized eggs don't implant more often than they do; the threshold for conception is only reached if the egg implants and stays implanted king enough for an actual pregnancy to start.

Conception = fertilization. Implantation is certainly required for development but the ova does not implant until after conception. Call up any medical dictionary if you don't believe me. Again this is only a fact check not a justification.
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Mynnion
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Greg-
quote:
read somewhere the very good point that this is not a Supreme Court interpretation of the Constitution, it is their interpretation of the provisions of 1993 Religious Freedom Restoration Act. Change the relevant portions of (or eliminate) that law and the decision becomes moot, and would need to be re-adjudicated (albeit, with this current decision as a relevant precedent)
Isn't this really the same thing? Can the SC rule in favor of a law that is itself unconstitutional or would the constitutionality of that law/act have to be specifically challenged? Seems a bit gray.
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Pyrtolin
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http://www.webmd.com/baby/guide/understanding-conception

Implantation is part of the conception process. TRying to insist that it only means fertilization is a misleading part of the effort to confuse birth control with abortifacients

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AI Wessex
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Your article doesn't contrast those two terms. For some people, conception = fertilization = pregnancy. For others, fertilization is the union of the sperm, and egg and conception and pregnancy involve implantation. Anti-abortion adherents typically treat all of the terms as synonyms, as the first example does. Their purpose in doing so is to move the time of the conception as far back as possible, that is to when sex happens (or shortly after). Others recognize that there is no actual pregnancy until the fertilized egg implants and begins the development process.

I agree with the latter, since up to 50% of fertilized eggs fail to implant and the woman is not even aware that fertilization occurred. Calling every fertilized egg "conception" doesn't properly take into account how the woman's body responds to the fertilized egg.

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MattP
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quote:
Isn't this really the same thing? Can the SC rule in favor of a law that is itself unconstitutional or would the constitutionality of that law/act have to be specifically challenged? Seems a bit gray.
When the supreme court makes a ruling in favor of a law they are saying that the law is constitutional.
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AI Wessex
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I wonder in the HL case if the lower courts or the SC were aware of the investment strategy HL had implemented. If they had been, would that knowledge have prima facie invalidated their case?
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Wayward Son
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Probably not, since they said they were unaware that their investments included those products.

Turns out, they were also unaware that their insurance previously provided these same birth control methods. So they really were a test case.

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scifibum
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It's hard not to believe that HL found a good portion of their motivation in this matter in the opportunity to attack the ACA/Obama, but that doesn't, unfortunately, change the set of facts the court was working with.

Personally, I think it's quite likely that they felt fully sincere in their concerns, here, even if part of their motivation stemmed from dislike of the ACA in general or of Obama. I don't expect people to always be able to detangle their motivations and make sure only the purest ones are behind their actions. I'm convinced they were filled with righteous feeling in their lawsuit, and also convinced they wouldn't have noticed much of a problem (and might still be covering Plan B) if they hadn't been pissed off about the ACA and approach by a group that wanted to sue.

I also don't think the investment angle has much bearing on anything. Yes, they could have avoided investing in the drug companies that sell those contraceptives, but I don't think it's a valid purity test for their motivation in the court case. At any rate, to say they "directly invested" just isn't true - they invested in funds whose managers had the freedom to invest the money in various ways that would not normally be scrutinized in detail by every investor.

I'm not sure why the court agreed that what the insurance covers was a matter of conscience for the Green family rather than the people choosing whether or not to utilize that coverage, but attacking Hobby Lobby's motivations and sincerity doesn't really help. The court decided that there was a genuine conflict between the requirements of the ACA and their religious beliefs - if it wasn't Hobby Lobby, some other complainant would step up, and the court would be the same court and find the same conflict. We just need a different approach that doesn't allow these conflicts.

The court ruled that there was a less restrictive way to accomplish the state interest in this case. To my mind that's a nod in the direction of single payer coverage.

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AI Wessex
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quote:
I also don't think the investment angle has much bearing on anything. Yes, they could have avoided investing in the drug companies that sell those contraceptives, but I don't think it's a valid purity test for their motivation in the court case. At any rate, to say they "directly invested" just isn't true - they invested in funds whose managers had the freedom to invest the money in various ways that would not normally be scrutinized in detail by every investor.
I have participated in corporate investment planning, as well as in my own. It would be unprofessional for a company to invest $73M into funds without a clear understanding of the manner and substance of how their funds would be invested in individual corporations. Given that they are strongly moralistic in their principles it would behoove them to make sure their money wasn't going to be put to irreligious or immoral purposes.

OTOH, you're right that the case has to be decided on its merits, but the court can rule that a complainant doesn't have standing if they have compromised their own position. I also agree that this may help strengthen the drive toward greater regulation of the health insurance industry and ultimately toward a single payer system.

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Seriati
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quote:
Originally posted by AI Wessex:
The real danger of this ruling is that it allows almost anything to be claimed as a religious exemption from federal laws. Even things like minimum wages could be claimed to violate the tenets of the Goofy Sect. Most will likely get struck down, but each one will have to be fought on its merits.

Nothing you just said is a change in the baseline from this case. One could always claim a religious exemption, and the court was always going to have to strike it down or not based on merits. This by the court's own opinion, didn't move the needle on the innumerable things that have already been resolved in this area of law.
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Mynnion
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Pyr-Looks like we are both right or wrong. It can be defined as either, or, or both. When I studied embryology it was the act of fertilization since that is the point of genetic identity.
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Adam Masterman
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quote:
Originally posted by Mynnion:
Pyr-Looks like we are both right or wrong. It can be defined as either, or, or both. When I studied embryology it was the act of fertilization since that is the point of genetic identity.

Pal can correct me if I'm wrong, but Catholics reject fertilization and declare implantation (the completion of conception) as the beginning of life. The reason being (again, according to memory) is that a fertilized egg can split into twins, and God does not separate souls, nor place two in one vessel. Thus, the soul only inhabits the body after twinning would have occurred.
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Mynnion
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I had never heard that. I always wondered at the conception argument anyway since a large number of ova never implant. I always thought that viability (around 24 weeks)was the best the Prolife movement had a shot at.
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LetterRip
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Adam,

interesting - twinning (segmentation) can happen up to 21 days after fertilization

https://en.wikipedia.org/wiki/Beginning_of_human_personhood#Segmentation

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Greg Davidson
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What is a definition that we can all agree on as being an "activist" Supreme Court decision? Does this meet that definition? Why, or why not?
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Mynnion
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I guess that goes back to the question I posed earlier. If the are simply interpreting the law as written then I could go either way. If they are weighing in on whether the law is constitutional then my answer would be yes.

Either way is it possible for any court represented by humans to make a ruling that is not shaped by their beliefs? If we look at the number of split decisions it is obvious that activism plays a role in the votes. When the court shifts left we will likely see many decisions that will be attacked by the Right.

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AI Wessex
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I'm not sure it's possible to answer your question. The SC is supposed to interpret law in the light of the Constitution. Their opinions and rulings change over time and with whatever political philosophy makes up the majority at the time. We are in an era of Conservative leaning decisions, reflecting the members themselves more than the document they supposedly are upholding.
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NobleHunter
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I've seen commentary suggesting this is about statutory rather than constitutional interpretation. The decision was based on a freedom of religion law (FRA?) rather than the first amendment directly. In that case, I think it's easier to build an argument regarding judicial activism.

For Constitutional interpretation, I find certain limitations in the worldview of the drafters and even later amendments create areas for conflicting readings. Not just technological and economic, but also the development of social/cultural identities as strongly held and defined as religion was to the Founders.

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MattP
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quote:
Originally posted by Greg Davidson:
What is a definition that we can all agree on as being an "activist" Supreme Court decision? Does this meet that definition? Why, or why not?

Activist generally just means "I don't agree with them." It's hard to provide a definition of activist that doesn't also apply to decisions that you agree with.
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Pete at Home
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Last week's SCOTUS ruling:

http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/

Why so few dissenters as to the persons issue? Lefties on the court have for decades expanded commercial freedom of speech, and those old timers don't change their key principles based on fads, unlike most other American lefties. This is why Sotomayor and Ginsberg are the only ones to sign onto III-C-1

quote:
C

With RFRA's restorative purpose in mind, I turn to the Act's application to the instant lawsuits. That task, in view of the positions taken by the Court, requires consideration of several questions, each potentially dispositive of Hobby Lobby's and Conestoga's claims: Do for-profit corporations rank among "person[s]" who "exercise . . . religion"? Assuming that they do, does the contraceptive coverage requirement "substantially burden" their religious exercise? If so, is the requirement "in furtherance of a compelling government interest"? And last, does the requirement represent the least restrictive means for furthering that interest?

Misguided by its errant premise that RFRA moved beyond the pre-Smith case law, the Court falters at each step of its analysis.


1

RFRA's compelling interest test, as noted, see supra, at 8, applies to government actions that "substantially burden a person's exercise [*36] of religion." 42 U.S.C. §2000bb-1(a) (emphasis added). This reference, the Court submits, incorporates the definition of "person" found in the Dictionary Act, 1 U.S.C. §1 , which extends to "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." See ante, at 19-20. The Dictionary Act's definition, however, controls only where "context" does not "indicat[e] otherwise." §1. Here, context does so indicate. RFRA speaks of "a person's exercise of religion." 42 U.S.C. §2000bb-1(a) (emphasis added). See also §§2000bb-2(4) , 2000cc-5(7)(a) . 12 Whether a corporation qualifies as a "person" capable of exercising religion is an inquiry one cannot answer without reference to the "full body" of pre-Smith "free-exercise caselaw." Gilardi, 733 F. 3d, at 1212 . There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations.

Until this litigation, no decision of this Court recognized a for-profit corporation's qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA. 13 The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is "an artificial being, invisible, intangible, and existing only in contemplation of law." Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 , 636 (1819). Corporations, Justice Stevens more recently reminded, "have no consciences, no beliefs, no feelings, no thoughts, no desires." Citizens United v. Federal Election Comm'n, 558 U.S. 310 , 466 (2010) (opinion concurring in part and dissenting in part).

The First Amendment's free exercise protections, the Court has indeed recognized, shelter churches and other nonprofit religion-based organizations. 14 "For many individuals, religious activity derives meaning in large measure from participation in a larger religious community," and "furtherance of the autonomy of religious organizations often furthers individual religious freedom as well." Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 , 342 (1987) (Brennan, J., concurring in judgment). The Court's "special solicitude to the rights of religious organizations," Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. ___, ___ (2012) (slip op., at 14), however, is just that. No such solicitude is traditional for commercial organizations. 15 Indeed, until today, religious exemptions had never been extended to any entity operating in "the commercial, profit-making world." Amos, 483 U.S., at 337 . 16

The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. See 42 U.S.C. §§2000e(b) , 2000e-1(a) , 2000e-2(a) ; cf. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 , 80-81 (1977) (Title VII requires reasonable accommodation of an employee's religious exercise, but such accommodation must not come "at the expense of other[ employees]"). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, [*37] clear as it is, constantly escapes the Court's attention. 17 One can only wonder why the Court shuts this key difference from sight.

Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre-Smith precedent Congress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457 , 468 (2001) (Congress does not "hide elephants in mouseholes"). The text of RFRA makes no such statement and the legislative history does not so much as mention for-profit corporations. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114 , 1169 (CA10 2013) (Briscoe, C. J., concurring in part and dissenting in part) (legislative record lacks "any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corporations"). See also Senators Brief 10-13 (none of the cases cited in House or Senate Judiciary Committee reports accompanying RFRA, or mentioned during floor speeches, recognized the free exercise rights of for-profit corporations).

The Court notes that for-profit corporations may support charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations. See ante, at 20-25. See also ante, at 3 (KENNEDY, J., concurring) (criticizing the Government for "distinguishing between different religious believers-burdening one while accommodating the other-when it may treat both equally by offering both of them the same accommodation"). 18 Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court's side. Recognition of the discrete characters of "ecclesiastical and lay" corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. See Terrett v. Taylor, 9 Cranch 43 , 49 (1815) (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645 (discussing "eleemosynary" corporations, including those "created for the promotion of religion"). To reiterate, "for-profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers]." Gilardi, 733 F. 3d, at 1242 (Edwards, J., concurring in part and dissenting in part) (emphasis deleted).

Citing Braunfeld v. Brown, 366 U.S. 599 (1961), the Court questions why, if "a sole proprietorship that seeks to make a profit may assert a free-exercise claim, [Hobby Lobby and Conestoga] can't . . . do the same?" Ante, at 22 (footnote omitted). See also ante, at 16-17. But even accepting, arguendo, the premise that unincorporated business enterprises may gain religious accommodations under the Free Exercise Clause, the Court's conclusion is unsound. In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates [*38] herself from the entity and escapes personal responsibility for the entity's obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation. In any event, Braunfeld is hardly impressive authority for the entitlement Hobby Lobby and Conestoga seek. The free exercise claim asserted there was promptly rejected on the merits.

The Court's determination that RFRA extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private. 19 Little doubt that RFRA claims will proliferate, for the Court's expansive notion of corporate personhood-combined with its other errors in construing RFRA-invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.



[ July 08, 2014, 03:08 PM: Message edited by: Pete at Home ]

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Grant
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quote:
Originally posted by Pete at Home:

Why so few dissenters as to the persons issue? Lefties on the court have for decades expanded commercial freedom of speech, and those old timers don't change their key principles based on fads, unlike most other American lefties. This is why Sotomayor and Ginsberg are the only ones to sign onto III-C-1


Well, Pete. The first thing you are doing wrong is actually reading the opinion and dissent. You're not supposed to do that. You're supposed to be reading George Takei.

Sulu will be leading a boycott of Hobby Lobby.
Phasers on justice!

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