Monday, June 30, 2014

Supremes On Hobby Lobby (And Similar Corp's, Partnerships, Etc.): F*** The Law, You Can Do Anything Your Corporate Religious Beliefs Tell You

From Sahil Kapur of TPM, the decision was, of course, 5-4, along partisan lines. Justice Ginsburg says the Court has "wandered into a minefield"; she is right, of course, but it's worse than that: the Court has already tripped a mine and the explosion has started. Here's an excerpt from Justice Ginsburg's opinion (please don't stop here; read her entire opinion):
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. 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.
Justice Scalia
Father Antonin
Ginsburg also noted that "... the case, brought by the Christian owners of the retail chain Hobby Lobby, marks the first time the U.S. Supreme Court has exempted a for-profit corporation from a generally applicable law on religious grounds."

As best I recall, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," i.e., Congress cannot declare an official religion for the nation, nor can they prohibit people from worshiping as they damned well please. But as of today, what Congress may not do, business entities may freely do, imposing the practical consequences of their own religious beliefs on their employees, even in defiance of laws passed by Congress... and the Supreme Court will back them up as they do this.

What's next? How long before Hobby Lobby (and similar businesses) send around a general memo that all employees who want to keep their jobs will appear Sunday morning at Holy Smokes Catholic Church for the early service? And when they do, will the Supreme Court back the companies, on the grounds that the RFRA is violated when employees attend a different church, or no church at all?

Is anyone else reminded of Atwood's The Handmaid's Tale? Do not, for even a moment, think "it can't happen here"!

AFTERTHOUGHT: a bit more reading and contemplating led me to ask and answer this question:

Q: What makes Burwell v. Hobby Lobby like Bush v. Gore?
A: Both rulings contain explicit self-limiting text that restricts the use of the decision to the current case only, i.e., neither can be used as precedent to rule on cases evoking similar underlying legal principles... because, says the Court, there are no underlying principles to be invoked.

Bush v. Gore:
[from the Court's Opinion]

  • Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Burwell v. Hobby Lobby:
[from the Court's Syllabus]
  • This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandate e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.
[from the Court's Opinion]
  • In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
Let's simplify the latter a bit: the decision is NOT to be applied generally to any old insurance-coverage mandate that conflicts with an employer's religious beliefs, but rather only to the contraceptive mandate in the ACA. Why is the applicability to be thus restricted, when the entire context is virtually the same? Because we [the Court] say so, that's why.

The Court majority's duck-and-cover on the whole issue is breathtaking: their restriction of application is essentially arbitrary, but they want to be sure no one uses it as precedent in another future case... just as they did in Bush v. Gore. I am no lawyer, but if I were, I suspect I'd find this little tap-dance both incompetent and determined to effect a specific outcome to the detriment of women's health. This song-and-dance really sucks; we deserve better from our highest court.


  1. a sad day for this country =(

    1. c, we're having a lot of those days lately. As I look around, I doubt seriously those sad days will end within my lifetime. At least the bad things are being exposed at a rapid rate; that gives me some hope."And I believe, in the future, we shall suffer no more / Maybe not in my lifetime, but in yours for sure," as Paul Simon put it.



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