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(Politico)   Hobby Lobby's case is also going to get ruled on by the "Law of Unintended Consequences"   (politico.com) divider line 198
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4651 clicks; posted to Politics » on 02 Jul 2014 at 11:33 AM (43 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2014-07-02 09:55:28 AM  
People keep talking about the Hobby Lobby case as a birth control issue or religious freedom issue. In some sense maybe it is, but to my legal mind what Hobby Lobby is first and foremost, and where it fails most spectacularly as a piece of legal reasoning, is as a corporate law issue. It's a disaster of corporate law, as it once again totally fails to take seriously the idea that a corporation is a legal person independent of its stockholders. While the courts rulings in the last few years have tended to do this in favor of the stockholders, eventually its going to come and bite them in the ass.
 
2014-07-02 11:15:12 AM  
"But no principle differentiates contraception from blood transfusions or vaccines-or, for that matter, any other health-care services that employers find objectionable on sincerely held religious grounds. The only principle the court seemed to provide is that contraception could be provided in other ways that were less burdensome to the religious liberties of corporations. For instance, the government could provide or finance the services rather than require corporations to do so. But that applies to absolutely everything-after all, Medicare and the VA system, which provide medical services to Americans across the continuum of care, show that the government can provide or at least finance any medical service you can imagine."

Playing Devil's Advocate for the court, their response would be that this is incorrect. The government had already carved out numerous religious exemptions towards contraception for religious organizations and religious-affiliated nonprofits. Therefor the system for having government take control of the cost burden for contraceptives is already in place, and extending it to more companies is entirely at HHS's discretion. Not only that, but since the ACA had specifically said that taxpayers won't fund abortion, the contraceptive coverage doesn't come from undifferentiated general fund, but a separate, distinctly marked fund designed for such a purpose.

This is not so with vaccines and blood transfusion. The ACA has made no distinction or exception for other medical treatments. Therefor there is no alternative structure already in place, and it would impose a heavy burden on the government to create one for every medical procedure. In addition, all other medical procedures are paid for from undifferentiated general funds, which have long been held as unobjectionable, since you are paying money into a general pool, and not for any specific purpose, and attempting to discern exactly how much of your money is going to any particular service is infeasible.

So there is no less restrictive means of obtaining the government interest for other procedures, but contraception is unique because Congress specifically called it out by name and separated it both legislatively and monetarily from other health services.
 
2014-07-02 11:16:03 AM  

DamnYankees: People keep talking about the Hobby Lobby case as a birth control issue or religious freedom issue. In some sense maybe it is, but to my legal mind what Hobby Lobby is first and foremost, and where it fails most spectacularly as a piece of legal reasoning, is as a corporate law issue. It's a disaster of corporate law, as it once again totally fails to take seriously the idea that a corporation is a legal person independent of its stockholders. While the courts rulings in the last few years have tended to do this in favor of the stockholders, eventually its going to come and bite them in the ass.


Which is very easily fixed. Just add one word to RFRA: change "persons" to "natural persons"
 
2014-07-02 11:21:25 AM  

nmrsnr: Which is very easily fixed. Just add one word to RFRA: change "persons" to "natural persons"


Not sure this would have changed the outcome. It probably would have forced the court to change the wording of its opinion, but fundamentally the court relied on the idea that the corporation can be attributed the religious views and protections of its stockholders. Even if you make that change to RFRA, that same logic still applies so long as you're willing to pierce the corporate veil like that, which the conservative majority clearly was happy to do.
 
2014-07-02 11:37:22 AM  
I'm not sure that's a real law, it certainly isn't in the Constitution.
 
2014-07-02 11:38:49 AM  

nmrsnr: Which is very easily fixed. Just add one word to RFRA: change "persons" to "natural persons"


Yeah, because it would be awesome to have a law about religious freedom that couldn't be invoked by a church, synagogue, mosque, religious hospital, religious school, etc.  Great idea.
 
2014-07-02 11:39:40 AM  
I very much doubt that these consequences were, in fact, unintended.
 
2014-07-02 11:39:52 AM  
How many layers does a corporation's religion project? For example, if Corporation X is owned by 5 holding companies, each of which is a personTM, and each one of those holding companies is owned by 5 holding companies, etc etc, by the time you get to a real living person that has beliefs to project, Corporation X might have a million separate real living owners.

Take Wal Mart for example. The waltons own 51% of it, but there are 6 of them, so it isn't closely held. But the waltons own 51% of Wal Mart through Walton Enterprises, LLC, which is, by definition, closely held. Since Walton Enterprises is a person and closely held, does it then project the religious beliefs of the Waltons onto Wal Mart, which then also becomes closely held?
 
2014-07-02 11:39:53 AM  

DamnYankees: Not sure this would have changed the outcome. It probably would have forced the court to change the wording of its opinion, but fundamentally the court relied on the idea that the corporation can be attributed the religious views and protections of its stockholders. Even if you make that change to RFRA, that same logic still applies so long as you're willing to pierce the corporate veil like that, which the conservative majority clearly was happy to do.


Then it's a much, much different case. This wasn't, and pointedly so, a Freedom of Exercise case. This was an interpretation of RFRA, which requires strict scrutiny for imposition on sincerely held religious beliefs of persons, which can include corporations. If they changed RFRA so that it takes away the strict scrutiny standard for corporations, you go back to Smith being the controlling precedent, or at least not RFRA, meaning that they can't use the strict scrutiny standard unless they then go on to claim that corporations have the right to Free Exercise of religion.

That would be far more aggressive a ruling than even I would credit this court with.
 
2014-07-02 11:40:28 AM  

nmrsnr: "But no principle differentiates contraception from blood transfusions or vaccines-or, for that matter, any other health-care services that employers find objectionable on sincerely held religious grounds. The only principle the court seemed to provide is that contraception could be provided in other ways that were less burdensome to the religious liberties of corporations. For instance, the government could provide or finance the services rather than require corporations to do so. But that applies to absolutely everything-after all, Medicare and the VA system, which provide medical services to Americans across the continuum of care, show that the government can provide or at least finance any medical service you can imagine."

Playing Devil's Advocate for the court, their response would be that this is incorrect. The government had already carved out numerous religious exemptions towards contraception for religious organizations and religious-affiliated nonprofits. Therefor the system for having government take control of the cost burden for contraceptives is already in place, and extending it to more companies is entirely at HHS's discretion. Not only that, but since the ACA had specifically said that taxpayers won't fund abortion, the contraceptive coverage doesn't come from undifferentiated general fund, but a separate, distinctly marked fund designed for such a purpose.

This is not so with vaccines and blood transfusion. The ACA has made no distinction or exception for other medical treatments. Therefor there is no alternative structure already in place, and it would impose a heavy burden on the government to create one for every medical procedure. In addition, all other medical procedures are paid for from undifferentiated general funds, which have long been held as unobjectionable, since you are paying money into a general pool, and not for any specific purpose, and attempting to discern exactly how much of your money is going to any particular service is in ...


So if the federal government had trampled even more on the religious rights of those companies and religiously affiliated non-profits whose owners oppose some or all birth control being covered on their insurance, the Supreme Court would have ruled for them instead of against them?

www.quickmeme.com
 
2014-07-02 11:41:18 AM  

Talondel: nmrsnr: Which is very easily fixed. Just add one word to RFRA: change "persons" to "natural persons"

Yeah, because it would be awesome to have a law about religious freedom that couldn't be invoked by a church, synagogue, mosque, religious hospital, religious school, etc.  Great idea.


You know that they all had protection pre-RFRA, right? That organized religion is not a corporation, and is afforded completely different privileges based on hundreds of years of case law?
 
2014-07-02 11:41:45 AM  

Wyalt Derp: I'm not sure that's a real law, it certainly isn't in the Constitution.


Nice.
 
2014-07-02 11:42:53 AM  

nmrsnr: Playing Devil's Advocate for the court, their response would be that this is incorrect. The government had already carved out numerous religious exemptions towards contraception for religious organizations and religious-affiliated nonprofits. Therefor the system for having government take control of the cost burden for contraceptives is already in place, and extending it to more companies is entirely at HHS's discretion. Not only that, but since the ACA had specifically said that taxpayers won't fund abortion, the contraceptive coverage doesn't come from undifferentiated general fund, but a separate, distinctly marked fund designed for such a purpose.


Most of the exemptions carved out for contraceptives, the very exemptions suggested by the justices as an alternative (the employer signing something that says they object on religious grounds and then allowing the government to pick up the cost) are themselves being challenged in court.  Under the assumption that not only is an employer sinning if they provide health insurance which an employee might use for sin but that an employer would also be sinning if they signed a letter which would allow someone else to provide a way for their employee to sin.

If the court feels that forcing companies to sin at one remove is unconstitutional, then they'll probably also agree that forcing them to sin at two removes is also unconstitutional.  I'd like to see how they justify saying there's a workaround in the Hobby Lobby case only to then rule the workaround unconstitutional.

Also, that workaround is only in place for religious organizations or non-profits, not for-profit companies like Hobby Lobby.  Do the justices really expect that a law saying the government would pick up the tab for HL's employees birth control would get through Congress?
 
2014-07-02 11:43:46 AM  

nmrsnr: DamnYankees: People keep talking about the Hobby Lobby case as a birth control issue or religious freedom issue. In some sense maybe it is, but to my legal mind what Hobby Lobby is first and foremost, and where it fails most spectacularly as a piece of legal reasoning, is as a corporate law issue. It's a disaster of corporate law, as it once again totally fails to take seriously the idea that a corporation is a legal person independent of its stockholders. While the courts rulings in the last few years have tended to do this in favor of the stockholders, eventually its going to come and bite them in the ass.

Which is very easily fixed. Just add one word to RFRA: change "persons" to "natural persons"


That would require one to pass a new law through the Republican-controlled House, of course.  So, not actually very easily fixed.
 
2014-07-02 11:43:50 AM  

Serious Black: So if the federal government had trampled even more on the religious rights of those companies and religiously affiliated non-profits whose owners oppose some or all birth control being covered on their insurance, the Supreme Court would have ruled for them instead of against them?


Not a chance. Did you miss my first three words: "Playing Devil's Advocate" this what what they thought they could hang their hat on, so that when they say no to blood transfusion exceptions they can pretend they're not picking and choosing which religious practices they like or not.
 
2014-07-02 11:45:49 AM  

Karac: Also, that workaround is only in place for religious organizations or non-profits, not for-profit companies like Hobby Lobby. Do the justices really expect that a law saying the government would pick up the tab for HL's employees birth control would get through Congress?


According to people I trust to know these things, they don't have to. HHS can do it unilaterally (and then have Fox News scream about Obama's tyranny).
 
2014-07-02 11:47:10 AM  
This is a long post, but I feel it needs to be said. People don't understand this.  So much of this relies on the idea that people have fundamentally forgotten the whole reason corporations exist. Let's take it back to square one.

Let's say you and I want to associate with each other. We want to create a partnership. Well, how do we do this? The easiest way is you and I enter into an agreement together. We sign a contract saying you will do X, I will do Y, and we will share in the results together.

So, what's the problem here? The problem is that this arrangement is a little bit dangerous for you and me. We are now partnered together, but because we are acting in concert in a partnership, all of the sudden I'm responsible for your actions, and you for mine. If you cause damage to a third party, that person will sue both of us!

So, a couple hundred years ago, we decided we can make this better. We decided to create the idea of the corporation. What is a corporation in its most basic form? It's the idea that a commercial enterprise can register with the state, and in exchange for following the rules of the state, it will get certain benefits, most important of which is limited liability. You can't lose more than you invested. Even if the entity you invested in caused huge damage, you can't lose more than your investment (as a basic rule).

Well, why did we agree to create this weird arrangement? There's nothing natural about it - if you and I go into business together, and we hurt someone, there's nothing 'natural' or 'obvious' about a rule which says our liability is limited to our investment. Normal rules of law say that our liability should be limited to the amount of damage we caused, right? Well, we did it because we realized that unlimited liability was harming commerce. The entire purpose of creating corporations was to facilitate commerce.

In order to do that, we decided to grant the corporation an identity separate from its investors. If a corporation harms you, you have to sue the corporation, and not the investors. If the corporation doesn't have enough money to pay you, the corporation goes bankrupt, and you can't get extra money from the investors. Just like a person can go bankrupt if they harm you, you can't all of the sudden sue their parents for the extra money.

As you can see, this arrangement has pros and cons. From the investor standpoint, the pro is limited liability (and with corporations, we've now developed a rigorous canon of laws for how corporations should be governed, which is also a plus). On the down side, there's that pesky idea that the corporation really is a distinct 'person' from its investors. On the financial side, this means the corporation gets taxed as a person. Investors hate this; conservatives call it double taxation. In reality, it's simply the price of your limitation of liability, but the investor class likes to obfuscate on that.

What's the other downside? The corporation is distinct from its shareholders and their beliefs! This is the farce of the recent rulings  in Citizens United and Hobby Lobby. Conservatives, just like with the 'double taxation' argument, simply don't like the downsides of the idea of the corporation. And so they are trying to dismantle them one by one. There's never any acknowledgment that these restrictions are in place in exchange for statutory protection. The whole point of this entire corporate scheme, as opposed to merely private business arrangements, is the furtherance of commerce. It's a tradeoff between the investors and the government. And the courts are tearing it down, relying on the fact that people have simply forgotten what the whole point of a corporation is.
 
2014-07-02 11:47:13 AM  
So  basically the "Hobby Lobby decision is so bad it might actually make Single Payer get here sooner" argument? Sure, why not?
 
2014-07-02 11:47:16 AM  

nmrsnr: You know that they all had protection pre-RFRA, right? That organized religion is not a corporation, and is afforded completely different privileges based on hundreds of years of case law?


Not against neutral, generally applicable laws, which is what RFRA was designed to protect against.  If you changed RFRA to address only natural persons, religious non-profits go back to having only the protections afforded by Emp. Div. v. Smith, but individuals would still be able to invoke RFRA against generally applicable, neutral laws.

So, for example, the exceptions that the Obama administration made to the ACA for religious non-profits would not have to be made if RFRA applied only to natural persons.
 
2014-07-02 11:47:55 AM  

Talondel: nmrsnr: Which is very easily fixed. Just add one word to RFRA: change "persons" to "natural persons"

Yeah, because it would be awesome to have a law about religious freedom that couldn't be invoked by a church, synagogue, mosque, religious hospital, religious school, etc.  Great idea.


Question: what does it mean for a separate legal entity to be religious? Or to focus on the predominant religion in America and the religion of those running Hobby Lobby, what does it mean for a separate legal entity to be Christian? I have absolutely no idea because the New Testament doesn't give us any examples of governments or businesses that are Christian. And the normal way that Christians claim to be such is by repenting sins, believing in Jesus Christ, accepting His salvation as the path to the afterlife, and being filled with the Holy Spirit in a constant struggle to become more holy and good. A business can't do any of those things. They have no agency, so they can't repent sins (or arguably even commit them). They can't believe things because they have no mental capacity. They can't be saved and brought to Heaven because they aren't alive. And as they lack a corporeal body, they can't be possessed by the Holy Spirit. So how can a business be Christian and have Christian religious beliefs?
 
2014-07-02 11:48:47 AM  
"This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer's religious beliefs."

Because reasons.

Bang up job, guys. This is the type of clear, definitive reasoning the United States deserves from it's Supreme Court.
 
2014-07-02 11:50:11 AM  

nmrsnr: This was an interpretation of RFRA, which requires strict scrutiny for imposition on sincerely held religious beliefs of persons, which can include corporations.


No it can't. That's my point. A corporation cannot, metaphysically or logically, have a religious belief. It's 100% impossible - I'm not talking legally, I'm talking logically.

The only way a corporation can be said to have a religious belief is if you attribute the beliefs of its investors to the corporation itself. And this is a gross violation of the whole idea of corporate personhood. This is my objection, and its one I have never seen really addressed.
 
2014-07-02 11:52:27 AM  

DamnYankees: The only way a corporation can be said to have a religious belief is if you attribute the beliefs of its investors to the corporation itself. And this is a gross violation of the whole idea of corporate personhood. This is my objection, and its one I have never seen really addressed.


it isn't a logical approach, but the way I think of it is that we're transitioning from a legal fiction, to a legal slashfic.
 
2014-07-02 11:53:12 AM  

Talondel: nmrsnr: Which is very easily fixed. Just add one word to RFRA: change "persons" to "natural persons"

Yeah, because it would be awesome to have a law about religious freedom that couldn't be invoked by a church, synagogue, mosque, religious hospital, religious school, etc.  Great idea.


Ignoring the first amendment protections those organizations already have, you could change it to say "non-corporate persons and religious non-profit institutions."
 
2014-07-02 11:54:32 AM  

DamnYankees: nmrsnr: This was an interpretation of RFRA, which requires strict scrutiny for imposition on sincerely held religious beliefs of persons, which can include corporations.

No it can't. That's my point. A corporation cannot, metaphysically or logically, have a religious belief. It's 100% impossible - I'm not talking legally, I'm talking logically.

The only way a corporation can be said to have a religious belief is if you attribute the beliefs of its investors to the corporation itself. And this is a gross violation of the whole idea of corporate personhood. This is my objection, and its one I have never seen really addressed.


If the business (say, Hobby Lobby) were a sole proprietorship or a partnership where there was no legal separation for liabilities and responsibilities between the business and the owners, I would adamantly support the rights of that person or those people to apply religious beliefs to their operations.
 
2014-07-02 11:55:16 AM  

Serious Black: If the business (say, Hobby Lobby) were a sole proprietorship or a partnership where there was no legal separation for liabilities and responsibilities between the business and the owners, I would adamantly support the rights of that person or those people to apply religious beliefs to their operations.


Sure, but then it wouldn't be a corporation. I'm fine with that.
 
2014-07-02 11:56:00 AM  

GhostFish: "This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer's religious beliefs."

Because reasons.

Bang up job, guys. This is the type of clear, definitive reasoning the United States deserves from it's Supreme Court.


It's called the Case or Controversy Doctrine (see  Art. III, Section 2, Clause 1) and has served us well for 200+ years.  The appellate courts don't offer opinions as to the legality of issues which are not involved in a particular case before them.  What the Court is saying in this passage is that if a company wants to object to some other insurance-coverage mandate, they will have to go through the same process that Hobby Lobby/Conestoga did, and only then would the Court rule on the merits of whether or not the RFRA would apply to it.
 
2014-07-02 11:58:21 AM  

Cataholic: It's called the Case or Controversy Doctrine (see  Art. III, Section 2, Clause 1) and has served us well for 200+ years.  The appellate courts don't offer opinions as to the legality of issues which are not involved in a particular case before them.  What the Court is saying in this passage is that if a company wants to object to some other insurance-coverage mandate, they will have to go through the same process that Hobby Lobby/Conestoga did, and only then would the Court rule on the merits of whether or not the RFRA would apply to it.


That's...not right at all. You're right that they don't issue rulings except for the case in front of them, but they usually issue rulings based on general legal principles which are applicable in more than just the case at hand. And if the court is going to say "this ruling only applies in case X and not Y", you'd expect them to say why that is, and what the distinction is between X and Y. They failed to do that.
 
2014-07-02 11:58:57 AM  
The continued growth of your corporate overlords.
 
2014-07-02 12:01:13 PM  

DamnYankees: That's...not right at all. You're right that they don't issue rulings except for the case in front of them, but they usually issue rulings based on general legal principles which are applicable in more than just the case at hand. And if the court is going to say "this ruling only applies in case X and not Y", you'd expect them to say why that is, and what the distinction is between X and Y. They failed to do that.


that's the thing that kinda stuck out to me. That they'd go so far as to list specific (and obvious) pitfalls to their reasoning, but make no actual effort - nary a word - to explain just how it is that the obvious pitfalls to their reasoning don't apply.

It isn't even handwaved away - but the thing that gets me is calling attention to it, only to ignore it. just ignoring it to begin with would have made more sense.
 
2014-07-02 12:02:14 PM  

DamnYankees: nmrsnr: This was an interpretation of RFRA, which requires strict scrutiny for imposition on sincerely held religious beliefs of persons, which can include corporations.

No it can't. That's my point. A corporation cannot, metaphysically or logically, have a religious belief. It's 100% impossible - I'm not talking legally, I'm talking logically.

The only way a corporation can be said to have a religious belief is if you attribute the beliefs of its investors to the corporation itself. And this is a gross violation of the whole idea of corporate personhood. This is my objection, and its one I have never seen really addressed.



First, this is a statutory issue and not a First Amendment issue.  If you don't like the way RFRA treats corporations (which themselves are creatures of statute), then feel free to change it.  Second, the Court did address this type of situation in First National Bank of Boston v. Bellotti.Conceptually there is little difference between religious views and political ones, and there is very little reason to ignore fundamental concepts of liberty in speech and thought just because the speaker chooses a corporate form rather than a personal one.
 
2014-07-02 12:03:20 PM  

DamnYankees: nmrsnr: This was an interpretation of RFRA, which requires strict scrutiny for imposition on sincerely held religious beliefs of persons, which can include corporations.

No it can't. That's my point. A corporation cannot, metaphysically or logically, have a religious belief. It's 100% impossible - I'm not talking legally, I'm talking logically.

The only way a corporation can be said to have a religious belief is if you attribute the beliefs of its investors to the corporation itself. And this is a gross violation of the whole idea of corporate personhood. This is my objection, and its one I have never seen really addressed.


Some religious organizations own for-profit corporations (as side businesses), and all are non-profit corporations.  Basically, you are saying a church can't have a religious belief, even though promoting such is the reason why it exists.

So, some types of corporations can have religious beliefs, logically.

Also, a person can have a religious belief.  If that person doesn't incorporate, so can his business, because it is one and the same with him.  Why should incorporating mean the business loses such religious beliefs (constitutionally)?  It's separate from him, but wholly owned by him.  Stretch that to a corporation that is owned by a few people, and there you go.  You can even add stuff about religion in the articles of incorporation, if you must.
 
2014-07-02 12:04:21 PM  

Cataholic: First, this is a statutory issue and not a First Amendment issue.


My objection is neither a statutory nor a first amendment one. It's a logic one. An idea needs to be logically consistent before you even get to statutory interpretation.

Cataholic: Second, the Court did address this type of situation in First National Bank of Boston v. Bellotti.Conceptually there is little difference between religious views and political ones, and there is very little reason to ignore fundamental concepts of liberty in speech and thought just because the speaker chooses a corporate form rather than a personal one.


My objection stands to both this case and free speech cases. If you think Bellotti put forth a good argument opposing me, please let me know. Merely saying the court disagrees with me doesn't do much - I know they do.
 
2014-07-02 12:04:23 PM  

heap: DamnYankees: That's...not right at all. You're right that they don't issue rulings except for the case in front of them, but they usually issue rulings based on general legal principles which are applicable in more than just the case at hand. And if the court is going to say "this ruling only applies in case X and not Y", you'd expect them to say why that is, and what the distinction is between X and Y. They failed to do that.

that's the thing that kinda stuck out to me. That they'd go so far as to list specific (and obvious) pitfalls to their reasoning, but make no actual effort - nary a word - to explain just how it is that the obvious pitfalls to their reasoning don't apply.

It isn't even handwaved away - but the thing that gets me is calling attention to it, only to ignore it. just ignoring it to begin with would have made more sense.


These are not stupid people and certainly they are people who understand the effect of SCOTUS opinions of this sort.  I can't believe that it was anything other than the intent to craft a ruling that could be applied broadly by companies wishing to limit their employees' coverage based on religious beliefs, or more.
 
2014-07-02 12:05:20 PM  

Geotpf: Some religious organizations own for-profit corporations (as side businesses), and all are non-profit corporations.  Basically, you are saying a church can't have a religious belief, even though promoting such is the reason why it exists.

So, some types of corporations can have religious beliefs, logically.


Yes, those are separate and I didn't want to get into it here since it muddies the waters.

Short response is that we have a system for creating corporations for non-commercial reasons. If you create one of those corporations, which are by their nature political or religious, I don't have an objection.
 
2014-07-02 12:06:02 PM  
This decision is a clusterfark of catastrophe on multiple grounds.  USSC basically came into the case knowing which way they wanted it to go for religious and/or political reasons, and then came up with the best justification that they could to make it happen.

As a result, we got a ruling that:
A)  Says that - for some reason - contraceptive care is entirely different from all other healthcare procedures.
B)  Sets precedent that a company's owner can have that company disregard any law based on a sincerely held belief.
C)  Sets the government up as the arbiter of whose religion is valid and sincere, and whose isn't.
D)  Creates a competitive advantage in the marketplace for employers of one religion (in this case, catholics) over all others.
E)  Has no internally-consistent logical basis, either in RFRA or in the Constitution.

Can we please impeach these farkwits yet?  Please?
 
2014-07-02 12:06:16 PM  

DamnYankees: The corporation is distinct from its shareholders and their beliefs!


I think this is the central flaw in your argument.  Your argument is based on this premise, but this premise is false.  At least from a positive law perspective (I take no position on what the rule should be as a normative matter).  But it has been clear for some time that people can associate and take a corporate form and still express their beliefs through that form.  People do not lose their 1st Amendment rights when they incorporate, either to speech or to religious freedom.  "Religion includes important communal elements for most believers. They exercise their religion through religious organizations, and these organizations must be protected by the [Free Exercise] [C]lause." Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987) citingKedroff v. Saint Nicholas Cathedral, 344 U.S. 94 (1952).


Perhaps your argument is that this should apply only to religious corporations, but that doesn't appear to be what you are saying.  You are claiming that the act of incorporating, and thereby gaining certain benefits, also comes with other consequences, and that includes the severing of the corporation from the beliefs of those who comprise it.  But that isn't true, again at least as a matter of positive law.  Perhaps it should be the case, as a normative matter, but it certainly isn't how the law of associations actually works.
 
2014-07-02 12:06:24 PM  

Geotpf: If that person doesn't incorporate, so can his business, because it is one and the same with him.  Why should incorporating mean the business loses such religious beliefs (constitutionally)?


Because the act of incorporation is a trade with the state. In exchange for limited liability, you agree to treat the corporation as a separate person.

Did you read my post above? I thought I explained this pretty well.
 
2014-07-02 12:07:16 PM  

Talondel: Perhaps your argument is that this should apply only to religious corporations, but that doesn't appear to be what you are saying.


That is in fact my belief. I didn't want to get into it here since it muddies the waters. Short response is that we have a system for creating corporations for non-commercial reasons. If you create one of those corporations, which are by their nature political or religious, I don't have an objection.
 
2014-07-02 12:08:08 PM  

Talondel: Not against neutral, generally applicable laws, which is what RFRA was designed to protect against


I'm not sure this is the case. Smith was about individuals, not religious organizations, and I have no idea what the controlling law is regarding religious organizations. They are treated quite differently in a number of ways, I wouldn't be surprised if there was another law which was controlling in that case. What I do know is that, pre-RFRA, we weren't suffering a huge spate of laws that churches were yelling were unfairly impinging on their ability to obey their conscience.

DamnYankees: No it can't. That's my point. A corporation cannot, metaphysically or logically, have a religious belief. It's 100% impossible - I'm not talking legally, I'm talking logically.


I agree, but that was literally the least surprising thing about the ruling, it was kind of expected. It's the same Citizens United terribleness. What I did like was Alito's line "Corporations, "separate and apart from" the human beings who own, run, and are employed by them, cannot do anything at all." I really want someone to use that to try and pierce the limited liability veil. Sue the Koch brothers, personally, for slander or something, since their super PACs can't do anything outside of the people who run it.
 
2014-07-02 12:08:58 PM  

nmrsnr: I agree, but that was literally the least surprising thing about the ruling, it was kind of expected. It's the same Citizens United terribleness.


I agree, its the same issue. But it still drives me crazy, perhaps even moreso since no one even seems to be questioning it.
 
2014-07-02 12:12:10 PM  

GhostFish: "This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer's religious beliefs."

Because reasons.

Bang up job, guys. This is the type of clear, definitive reasoning the United States deserves from it's Supreme Court.


This is the part that bothers me most.  I can live with a ruling with which I don't agree if it is at least based on sound logic and well supported.  Nobody is going to get their way all the time.  But the logic such as it is behind this is just farking clown shoes.
 
2014-07-02 12:12:36 PM  
flyoverculturedotcom.files.wordpress.com
 
2014-07-02 12:12:49 PM  
Any other Shadowrun players here thinking that Hobby Lobby is basically the harbinger of the Shiawase decision?

But seriously speaking, DamnYankees is absolutely correct. What is the point of the corporate veil if it is only one way?

I am actually an attorney, and let me tell you, it is completely insane that stockholders can now shove their hand further up the puppet of corporate personhood but liability is still limited. The Court has engaged in outright statutory revision by redefining what a corporation is. According the USSC, a corporation now is nothing more than an annual fee you pay each year to avoid personal liability, but is otherwise indistinct from the owner.

Madness. Utter madness and I am actually hoping some Jehovah's Witness sues on the blood transfusion issue. Either the Court will have to revise Hobby Lobby or we get Single Payer.
 
2014-07-02 12:12:59 PM  

DamnYankees: t's a disaster of corporate law, as it once again totally fails to take seriously the idea that a corporation is a legal person independent of its stockholders. While the courts rulings in the last few years have tended to do this in favor of the stockholders, eventually its going to come and bite them in the ass.


Not sure. They are very carefully crafting legislation to grant all privileges and rights a real person has to these corporations, but almost none of the responsibilities and accountability a real person would have. SO they are having the cake and eating it as well.
 
2014-07-02 12:13:07 PM  

Serious Black: So how can a business be Christian and have Christian religious beliefs?


As a legal matter, because a business, non-profit, hospital, church, etc. are comprised of people and those people can express their beliefs through the entity. See the case cited above.

As a religious matter, I have no idea.  Damnit man, I'm an attorney, not a theologian.
 
2014-07-02 12:13:13 PM  

Talondel: DamnYankees: The corporation is distinct from its shareholders and their beliefs!

I think this is the central flaw in your argument.  Your argument is based on this premise, but this premise is false.  At least from a positive law perspective (I take no position on what the rule should be as a normative matter).  But it has been clear for some time that people can associate and take a corporate form and still express their beliefs through that form.  People do not lose their 1st Amendment rights when they incorporate, either to speech or to religious freedom.  "Religion includes important communal elements for most believers. They exercise their religion through religious organizations, and these organizations must be protected by the [Free Exercise] [C]lause." Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987) citingKedroff v. Saint Nicholas Cathedral, 344 U.S. 94 (1952).


Perhaps your argument is that this should apply only to religious corporations, but that doesn't appear to be what you are saying.  You are claiming that the act of incorporating, and thereby gaining certain benefits, also comes with other consequences, and that includes the severing of the corporation from the beliefs of those who comprise it.  But that isn't true, again at least as a matter of positive law.  Perhaps it should be the case, as a normative matter, but it certainly isn't how the law of associations actually works.


A corporation is imbued with purpose when it is created. That purpose is usually to maximize shareholder profit. Religious legal entities such as non-profits are created with separate purposes. In either case, the owner's beliefs do not project onto the separate legal entity by default. Religious organizations are protected by the free exercise clause because those organizations themselves are exercising those beliefs. Hobby lobby sells pipe cleaners and bits of string it imports from China. Its not a church.
 
2014-07-02 12:13:43 PM  

DamnYankees: This is a long post, but I feel it needs to be said. People don't understand this.  So much of this relies on the idea that people have fundamentally forgotten the whole reason corporations exist. Let's take it back to square one.

Let's say you and I want to associate with each other. We want to create a partnership. Well, how do we do this? The easiest way is you and I enter into an agreement together. We sign a contract saying you will do X, I will do Y, and we will share in the results together.

So, what's the problem here? The problem is that this arrangement is a little bit dangerous for you and me. We are now partnered together, but because we are acting in concert in a partnership, all of the sudden I'm responsible for your actions, and you for mine. If you cause damage to a third party, that person will sue both of us!

So, a couple hundred years ago, we decided we can make this better. We decided to create the idea of the corporation. What is a corporation in its most basic form? It's the idea that a commercial enterprise can register with the state, and in exchange for following the rules of the state, it will get certain benefits, most important of which is limited liability. You can't lose more than you invested. Even if the entity you invested in caused huge damage, you can't lose more than your investment (as a basic rule).

Well, why did we agree to create this weird arrangement? There's nothing natural about it - if you and I go into business together, and we hurt someone, there's nothing 'natural' or 'obvious' about a rule which says our liability is limited to our investment. Normal rules of law say that our liability should be limited to the amount of damage we caused, right? Well, we did it because we realized that unlimited liability was harming commerce. The entire purpose of creating corporations was to facilitate commerce.

In order to do that, we decided to grant the corporation an identity separate from its investors...


...As you can see, this arrangement has pros and cons. From the investor standpoint, the pro is limited liability (and with corporations, we've now developed a rigorous canon of laws for how corporations should be governed, which is also a plus). On the down side, there's that pesky idea that the corporation really is a distinct 'person' from its investors. On the financial side, this means the corporation gets taxed as a person. Investors hate this; conservatives call it double taxation. In reality, it's simply the price of your limitation of liability, but the investor class likes to obfuscate on that.

What's the other downside? The corporation is distinct from its shareholders and their beliefs! This is the farce of the recent rulings in Citizens United and Hobby Lobby. Conservatives, just like with the 'double taxation' argument, simply don't like the downsides of the idea of the corporation. And so they are trying to dismantle them one by one. There's never any acknowledgment that these restrictions are in place in exchange for statutory protection. The whole point of this entire corporate scheme, as opposed to merely private business arrangements, is the furtherance of commerce. It's a tradeoff between the investors and the government. And the courts are tearing it down, relying on the fact that people have simply forgotten what the whole point of a corporation is.


Yeah, I read your whole post. It helps, but...

THE AGREEMENT IS NOT CREATING A SENTIENT LIVING ORGANISM with rights apparently superior to HUMAN rights.

I hope someone can correct me on this, because it got stuck in my damnfool head and it's messing up my viewpoint.
 
2014-07-02 12:13:45 PM  

Geotpf: DamnYankees: nmrsnr: This was an interpretation of RFRA, which requires strict scrutiny for imposition on sincerely held religious beliefs of persons, which can include corporations.

No it can't. That's my point. A corporation cannot, metaphysically or logically, have a religious belief. It's 100% impossible - I'm not talking legally, I'm talking logically.

The only way a corporation can be said to have a religious belief is if you attribute the beliefs of its investors to the corporation itself. And this is a gross violation of the whole idea of corporate personhood. This is my objection, and its one I have never seen really addressed.

Some religious organizations own for-profit corporations (as side businesses), and all are non-profit corporations.   Basically, you are saying a church can't have a religious belief, even though promoting such is the reason why it exists.

So, some types of corporations can have religious beliefs, logically.

Also, a person can have a religious belief.  If that person doesn't incorporate, so can his business, because it is one and the same with him.  Why should incorporating mean the business loses such religious beliefs (constitutionally)?  It's separate from him, but wholly owned by him.  Stretch that to a corporation that is owned by a few people, and there you go.  You can even add stuff about religion in the articles of incorporation, if you must.


I think that's exactly the point, but I don't want to put words in his mouth.  So here's my take on it.  Can the church go to heaven?  Get baptized?  Can it do *any* of the things that make a person Christian?  Can the church even think?  What *IS* the church, after all?

It's people.  People with beliefs and goals and dreams.  To explore these things and act on them, they form collectives.  This collective can be said to represent the beliefs of its constituents, but I don't think it's really accurate to claim this means the collective itself has beliefs of its own.

The entire argument is silly because our beloved scotus has ruled both ways on this very issue so many times it's hard to keep track of who believes what in that lot.
 
2014-07-02 12:14:42 PM  

nmrsnr: I really want someone to use that to try and pierce the limited liability veil. Sue the Koch brothers, personally, for slander or something, since their super PACs can't do anything outside of the people who run it.


Sure, but have the sneaking suspicion "logical consistency" is not something the Roberts Court is overly concerned about.

Chalji: Madness. Utter madness and I am actually hoping some Jehovah's Witness sues on the blood transfusion issue.


There are already challenges like this winding their way through the lower courts.
 
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