Is The Law That Saved Hobby Lobby Unconstitutional?
Is the Religious Freedom Restoration Act itself an unconstitutional Establishment of Religion barred by the First Amendment? There's a compelling argument that it is.
When the Supreme Court handed down its ruling yesterday in the Hobby Lobby case, there were some initial media reports that incorrectly stated that the Court had issued a ruling under the Free Exercise Clause of the First Amendment. In reality, of course, the Court’s ruling was based on the Religious Freedom Restoration Act, a 1993 law passed by a near unanimous Congress that was controlled by Democrats, and signed into law by President Clinton. The law was promoted by the Supreme Court’s ruling in Employment Division v. Smith in which the Court rejected a religious liberty claim by Native Americans that a decision to deny them unemployment benefits when they were fired for failing a drug test that came back positive of peyote, which is used in their tribe’s religious rituals. In essence, the Court ruled that the First Amendment does not give Americans an exemption from generally applicable laws merely because that law conflicts with their religious beliefs, or criminalizes activity that is part of their religious faith. Many mainstream religious groups reacted negatively to the ruling, fearing that it could lead to a whole host of situations where pastors and parishioners would be punished for following their faith. The RFRA was passed in response to the ruling, and although its applicability to the states was struck down, the courts have generally accepted the fact that the law is Constitutional.
Today, at The Volokh Conspiracy Sasha Volokh raises the question of whether or not that is actually the case:
Justice Stevens is the only one who ever showed any sympathy for the argument that RFRA violates the Establishment Clause, in his concurrence in City of Boerne v. Flores.Nonetheless, Justice Stevens may have been right as a philosophical matter, so let me reproduce the entirety of his concurrence here:
In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.
If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v.Jaffree, 472 U.S. 38, 52-55 (1985).
The unconstitutionality of RFRA has also been a theme of Marci Hamilton’s work; she also submitted an amicus brief in the Hobby Lobbycase arguing that RFRA was unconstitutional. She has four theories: (1) RFRA violates the separation of powers, (2) RFRA violates Article V, (3) RFRA isn’t justified by any of Congress’s powers, and (4) RFRA violates the Establishment Clause. I disagree with (1) through (3), but am sympathetic to (4).
I have embedded Hamilton’s amicus brief below, and rather than reproducing her argument in full, I will just recommend the reader to consult it on their own. At 34 pages it is relatively short and fairly easy for even non-lawyers to understand.
Looking at the matter more generally, I have to say that I largely agree with Volokh in that I have long been troubled by the idea of the RFRA, and that we may be seeing some of the reasons that it is problematic in cases such as Hobby Lobby and the cases that are likely to follow it. In the abstract, I suppose, there is something to be said for the idea that there ought to be at least some kind of religious exemption to laws in situations where a person potentially faces punishment for actions that are a part of their religious faith. The peyote example in Smith is one such situation; a Native American who uses peyote as part of a religious ceremony should probably not be punished because of that. Another example would apply to Christian churches, most especially the Catholic Church, who use wine in their religious ceremonies. In the era of Prohibition, this would have been a violation of the law but for the fact that the applicable laws generally exempted religious uses from the laws banning alcohol. Ideally, there would be exemptions in the law to cover these situations but, as Mr. Smith learned in the case that bears his name, that isn’t always the case. While the Court in that case was largely correct in its holding that religion cannot be an excuse for failing to comply with a generally applicable law. However, what happened to Smith does seem like something of an unjust situation, and that, along with the concerns raised by religious leaders, was the motivation behind the RFRA.
While most of the criticism about Hobby Lobby has focused on the fact that the Court held that a closely held corporation can assert claims under the RFRA, it strikes me that many critics are missing the real problem with the Courts ruling. Essentially, I am referring to the fact that the Court found that the Greens assertion that providing coverage for certain, but not all, forms of birth control under their company’s health care plan would be a violation of their religious beliefs constituted the substantial burden that the statute requires. The dissents in the case barely contest this finding, and my own reading of the RFRA suggests that the Court was entirely correct to find that the statute applied in this situation. But, that’s the problem. If paying whatever extra it may have cost to cover a few birth control drugs is considered part of religious belief under the law — and again, there is nothing in the RFRA or supporting case law that says it shouldn’t be — then what couldn’t be considered an exercise of religious belief. The most obvious implications for this type of argument, it seems to me, will come not in cases of other employers wanting to use religion to micromanage health insurance plans but in the cases that have been popping up recently involving vendors who do not wish to provide services to same-sex weddings based on religious objections. If an objection to paying a little extra for birth control coverage is a valid claim under the RFRA to bar applicability of that part of the employer mandate, then why wouldn’t religious objections to same-sex marriage be a valid RFRA bar to an otherwise generally applicable law barring discrimination based on sexual orientation? As a matter of law, I think it would be hard to distinguish the two. As a policy matter, though, I have to wonder if we want to start saying that religious beliefs are a valid reason to discriminate against someone in a manner otherwise barred by law. But, that would seem to be exactly the outcome that the RFRA would mandate.
While the motivation behind the RFRA is well intentioned, it strikes me that Justice Stevens has a point in the concurrence that is quoted above. In the end, when Congress passed a law giving a special exemption from generally applicable laws to people based on their religious beliefs, it gave to the person of faith something that nobody who is not a person of faith can ever have. The atheist or agnostic doesn’t get an exemption from any law that they might have a strongly felt philosophical objection to, for example, and neither does someone of a different faith who must still comply with that same generally applicable law. To use the Hobby Lobby example, owners of closely held companies that do not have a religious objection to certain forms of birth control don’t get the same benefit does, nor do they get to make a claim that they have a general philosophical objection to the idea of the government requiring them to provide health insurance to employees and dictating the terms of those policies. Congress, through the RFRA has created a protected area of thought — religious thought — that gets special protection under the law. That, quite arguably, is an establishment of religion in violation of the First Amendment to the Constitution.
Notwithstanding the fact that Hamilton raised this issue in the brief filed in Hobby Lobby, the Court does not give attention to her argument at all in its opinion. Given the fact that the RFRA has been around for twenty years now and has made it through the Supreme Court several times without any serious challenge other than the Court’s determination that Congress could not apply the law to the states, it seems unlikely that the RFRA will be struck down at this point absent a truly compelling argument combined with the right set of facts. It seems even less likely that Congress would ever repeal the law. So, it would seem that we are stuck with it at this point. Eventually, though, I’m wondering if we’re going to come to think that the 103rd Congress may have made a mistake when it passed this law even if it had good intentions when doing so.
Here is Hamilton’s Amicus Brief:
Can you ask the Supreme Court for reconsideration based on that argument?
@Mu:
The Supreme Court rarely grants Motions for Reconsideration.
Also, since the argument was raised in briefs I don’t believe it would meet the requirements for the type of argument that would need to be raised in such a motion.
And, finally, as I said I doubt the Court will strike down the RFRA
The problem isn’t the RFRA…which has been around, as you say, for twenty years.
It’s the 5 guys who decided for the very first time that a corporation is a person when it wants to be, and a corporation when that serves it’s ends better.
It would be mindblowing to me that a rule that was Constitutionally mandated for decades (the Sherbert test) before being abandoned, could actually go full circle and be an Unconstitutional rule when applied more narrowly to the exercise of executive discretion. Did Justice Brennan violent the Constitution when he created the Sherbert test?
The problem here is that the RFRA was always intended to be about individuals or communities performing their religious obligations. There was simply no idea that it would be used to apply to a corporation engaging in the normal course of business-providing contraceptive coverage to employees as part of their compensation. I bet not a single member of Congress who voted for it in 1993 thought it would be applicable there.
With the right Congress, fixing it would be easy; but we don’t have the right Congress. Will women be motivate to vote in such numbers that we could elect a “right” Congress in future? Or do we simply have to wait for one of the conservative majority to die? These seem to the likely ways to “fix” the situation.
Another possibility here is overreach. If a LOT of closed corporations start insisting on their religious privileges, it’s possible that Americans may become so sick of it that there is a popular groundswell to change the law.
I once read an article about the First Amendment and the author stated that the only thing all scholars agree upon about the Freedom of Religion is that the government cannot establish a church. More to the point though, here is a short article on this Hobby Lobby decision by Debbie Schlussel, a conservative, to be sure. http://www.debbieschlussel.com/72899/why-the-hobby-lobby-obamacare-ruling-is-irrelevant-may-be-used-against-you/
I am sure she is right, but I do not think I have enough time left to see it happen.
Quick note:
SCOTUS held in City of Boerne v. Flores that the federal RFRA could not be applied to state laws. Discrimination claims regarding same-sex wedding vendors have (so far) arisen under state, not federal, law. This means that if a defendant in such a case attempts to raise a RFRA defense, it would come under the state’s RFRA, not the federal RFRA.
If a state’s highest court determines that the state’s interest in prohibiting discrimination against a same-sex wedding customer outweighs rights under the state’s RFRA law, then the Supreme Court is going to defer to the state court’s interpretation of its own laws.
Of course … SCOTUS could decide to review the matter under the Free Exercise Clause, but I doubt the court will do so. It had an opportunity to apply the Free Exercise Clause in the Willock case, but the high court denied cert.
If the SCOTUS thought that RFRA was unconstitutional they would not have used it as the reason to find for Hobby Lobby. Whatever word games you want to play to make yourself feel better about this decision, this particular one isn’t going anywhere. In fact this ruling extends RFRA to cover closely held companies whether you agree with it or not.
All RFRA does is protect people with religious beliefs from having those beliefs trampled by the government. It does not make religion or any one religion the official state position. Nor does it trample the rights of nonbelievers.
@stonetools: We can’t worry too much over intentions in our laws, however. We have to interpret them against the facts of the case at hand.
Based on this reading the RFRA sure seems in violation of the establishment clause to me.
Why this country continually kowtows to those making unprovable ‘religious’ assertions is beyond my comprehension. I have no problem with people ceremoniously drinking chicken blood, eating the “body of Christ”, self-flagellation, facing east and prostrating themselves 5 times a day, or any other weird religious practice designed to curry favor with the supernatural.
My tolerance stops when those who do not believe in such nonsense are impacted.
@jim m:
Exactly. We can see that most clearly in how it permits polygamy for devout Mormons who… Oh. Wait. Never mind.
I meant the way it makes sure that Santerians are permitted to sacrifice goats without fear of animal cruelty laws being… Oops. Not that one either.
Hmm. Satanists? Not hardly. Wiccans? Them neither. Vodun? Get real. Rastafarians? Not consistently.
See above. Clearly not all religions get equal treatment here.
@DrDaveT: All religions are equal but some are more equal than others
@jim m:
So you think 90% of the corporations in this country should be able to pick and choose when their incorporation protects them from obligations and responsibility…and when it just does not apply to them.
Good to know consistency is important to you.
I really don’t know if the RFRA is unconstitutional or not. What I do know is that as of right now, religious people have “special rights” that I, as an atheist, do not. So much for “equal protection of the law”.
And yeah, it p!sses me off.
@jim m:
Bull sh!t. It does if you work for Hobby Lobby.
@OzarkHillbilly: Hobby lobby DOES pay for some birth control, just not all.
And I have yet to hear from anyone here how it is that if an employer refuses to pay for your lifestyle choices that they are somehow prohibiting you from still doing those things on your own. Care to take up that challenge? There is nothing in Hobby Lobby’s actions that stop people from doing anything they choose with regard to contraception. Nothing. If you want to use one of the choices they pay for then great, if you want to use something else, then you are entitled to do so. So please tell me how having someone pay for your lifestyle choices is a basic human right.
@C. Clavin: As we discussed yesterday, I believe that the vast majority of these companies are sole proprietorships or partnerships. Subchapter S corps are commonly used by small employers to secure the benefits of incorporation while maintaining personal control over the operations and that is where many of these companies can be found.
Let’s be honest: What you object to is not really that these sole proprietorships can incorporate because if you really cared about it you would have been objecting to it before. You object to the ruling.
So what you are now saying is that these individuals should be punished by making it illegal for them to incorporate if they want to maintain their religious rights as provided to them under the Constitution and RFRA. Kind of makes you sound like you are a bit prejudiced.
@jim m:
This ruling has nothing to do with the Constitution.
Clearly you don’t understand the issue.
Get back to us when to catch up.
@DrDaveT: Polygamy was outlawed by a separate statute so that is a little different. But if you want to claim that this ruling puts us on a slippery slope to legalizing it then I would say that it does no more so than same sex marriage.
As for other people saying that why not let JW’s choose plans that do not pay for blood transfusion? I say why not. If they really believe that people go to Hell if they get transfused then why should they be forced to pay to send people to Hell? And I have worked my entire career in the Blood industry.
I really don’t think that we should force people to pay for things that are against their conscience and I try to be consistent in that.
I also think that if you don’t like your employer’s benefit plan you should get another job. There is an interesting thread on LinkedIn today asking if people would work for Hobby Lobby because of this. What is interesting is that there is a pretty good mix on both sides. I believe that people have a choice about where they work and people should exercise that right to work somewhere else if they object to this policy. There are companies that I would never work for because I find their actions unethical. I would expect others to do the same.
@C. Clavin: Really? That’s all you’ve got? I know that this was about RFRA. But I am also right that you are bent about the ruling and just want to lash out in ways that are really prejudiced. Your refusal to address that part of my comment speaks volumes about how correct I am.
@C. Clavin: Actually, the ruling leaves it to states to determine under their laws whether or not a corporation is considered “closely held”. And it does not let anyone pick and chose what laws they want to adhere to. It exempts them from 1 small part of 1 law. Stop hyperventilating and wrap your head around what the ruling does and does not do.
Get back to me when you catch up to reality.
@jim m:
The RFRA, according to a 1997 ruling by the SCOTUS does not apply to states.
You really don’t understand this at all…do you.
Get back to us if you figure it out.
@C. Clavin: I didn’t claim that it did. I said that yesterday’s ruling left it to the states to define what was a closely held company. It also ruled that if a company was considered closely held that it would potentially be exempt from the (federal) ACA contraception mandate.
You keep on saying that people who disagree with you don’t understand. You keep using that word. I don’t think it means what you think it means. Seems to me that the person with the difficulty understanding is you. All you are is bitter and angry. It doesn’t make for good debate when the other side is emotionally unbalanced. Get back to me when you get control of yourself.
It was the ACA that made this a problem. It wasn’t Hobby Lobby, the RFRA or anything else. Kathleen Sebelius and her crew went into a dark room after the passage of the ACA and came out stating that “These 20 birth control drugs/devices must be covered under the ACA”. It wasn’t in the law, it was an unelected bureaucrat that made this decision.
Women and men have been procuring their own birth control drugs/devices for decades and all of a sudden the government under the ACA mandated that now they MUST be covered under ALL insurance plans. And the HHS said only HHS approved plans can be sold, thereby forcing everyone who purchases a policy through group/employer/individual, must pay for this coverage.
I’m just waiting for the day that Sandra Fluke says that we must pay for silk sheets, candles, wine, and a Barry White CD so she can get her groove on.
@jim m:
To respond to your nonsense…what I object to is the ruling that says an artificial legal entity can decide when it is a corporation that protects it’s owners from obligations and responsibilities…and when it is a person that has religious freedom.
@Another Mike: That article was repulsive. I need a shower.
@Scott:
So Catholics(both Roman and Orthodox) will object to the contraception mandate. So will many evangelicals (Hobby Lobby is owned by evangelicals not Catholics). So will many Orthodox Jews. So will some Muslims. That alone covers over half of the global population and between Christianity, Islam and Judaism and you cover ~75% of the US population. As for other religions I don’t know there teachings on this issue so I cannot speak to that.
But what you are really bent about is that the SCOTUS just made a ruling that will apply to the rights that 75% of Americans may want to exercise.
And what you are demanding is that people pay for your lifestyle choices. Nothing in this ruling prevents a single person anywhere form getting some form of contraception. I have asked repeatedly for someone to explain how it is that this ruling stops people from getting contraception and no one has bothered to take that challenge. It almost makes one conclude that what is really going on is a lot of anti-religious prejudice.
@C. Clavin: What the ruling stated was that when a company is closely held, ie that it is owned by one person or by several people who are presumably of like mind, that there is really no distinction between the company and the individual(s). You either do not understand that point or you are being deliberately obtuse so that you can give vent to your irrational prejudice.
My favorite Hobby Lobby ruling complaint is “Well, they pay for vasectomies!” as if that somehow makes the ruling unfair, and just another shot in the War on Women. Yes, they do cover vasectomies in their health care plan. They cover tubal ligation too. They also cover all types of birth control pills, sponges, female condoms (male condoms too!), injections, rods, etc., etc. Surely, with all the choices available, sixteen in total, at no co-payment to the insured, everyone can find some method of contraception that works for them.
@jim m: @Another Mike: That article was repulsive. I need a shower.
@Moderate Mom: Surely, with all the choices available, sixteen in total, at no co-payment to the insured, everyone can find some method of contraception that works for them.
Actually no, this is not true and you know it. There are women who can’t use the pill and will need an IUD. There are women who can take only a certain type of pill. This is something that should be decided between a woman and her doctor with absolutely no input from her boss.
@jim m: Jim, no matter how many times you say it, human sexuality is not a “lifestyle choice.” Get your a ass a seat on the SCOTUS and maybe then you can declare something, say a legal fiction meant to shield responsibility and assets, to be something it is not, like, oh, idk, a person. Birth control is medicine, used primarily by women, to treat and prevent medical conditions and to enhance overall health. So sorry you’ve had such shitty sex btw.
@beth: And they have to take the pill or have an IUD for a medical condition or because they have made a lifestyle choice that they do not want to have children? If preventing pregnancy is the objective then why are other methods unacceptable? Why is it mandatory that every lifestyle choice be paid for?
It’s like an employer saying that they will provide you a car for your job and you demand a Mercedes Benz. Sure other cars will get you there but not like a Mercedes Benz. The Benz is safer, more reliable and will last longer than the Chevy you are being offered. They are being evil by making you take a car that is not as safe as the Mercedes with all its warning systems etc. So dammit! The employer just needs to give you that Mercedes! The answer is that you can get one yourself or you can make due with what you are offered.
This does not deny anyone access to contraception. Nice try though.
@Moderate Mom:
No. What makes the ruling unfair is that it puts one religion’s (Christianity’s) deeply held religious belief (abortion is bad) over and above other religion’s (Jehovah Witness’/Seventh Day Adventists) deeply held religious beliefs (No Blood Transfusions/No Medical Care At All),
Alito virtually said that in his decision.
So the 5 Catholic men on the Supreme Court told the world that their religion, and other similar believing relgions trump all those other ‘minor’ religions.
Sad.
@KansasMom: Sexuality is not a lifestyle choice, but how you have sex is and certainly whether or not you choose to have children is. If you choose to not have children then you make the secondary choice of how to avoid pregnancy. That choice is not mandated by any medical condition as there are many forms of contraception and just because you want an IUD and not to be bothered with interrupting the spontaneity of the moment by putting on a condom doesn’t mean that your employer should have to pay for that IUD if it violates their conscience.
@jim m: It is really none of your business why I need the pill. That is between me and my doctor, not you or my boss. There is no medicine in the world where this criteria applies and you only want to know about it because you’ve got some weird hangup about sex and women. (After all, you’re the one who used a derogatory nickname to describe an 83 year old woman’s physical appearance – do you have any idea how creepy that makes you? Is the 83 year old not hot enough for you? )
This is a drug that 64% of the 99% of women who have sex are using at some point. It is a basic vital part of women’s healthcare, used for the treatment of many conditions and used to prevent the medical condition (yes, it’s a medical condition) of pregnancy. There is no reason women should have to pay for health insurance and then pay yet again for a heavily used drug because you have a problem with icky sex.
@EddieInCA: Actually, it said that it did not address the issue of JW’s etc. That is different from saying that those people do not have the same protection. If a JW wanted to sue on this issue they could and the court may find the necessity to rule on that. Until such a time I think that it is wise to withhold criticism on that issue because you don’t know how the court will rule. I have already stated my opinion on that issue further up the thread.
And also the issue of contraception is not specific to Christianity. You can find the same convictions amongst Muslims and Jews. What do you have against Muslims and Jews that you don’t want to mention them? Or is it that you just have something against Christians?
@jim m:
No. It’s like your boss offers to pay you less in salary in return for letting you choose one of 20 cars to drive. You can only choose the car that’s best for you after a consultation with your doctor. Your doctor tells you that based on your medical needs, you need one of these four cars. Oops. Your boss now says that you cannot drive any of those cars, because you driving that car is an affront to his religious beliefs. But your boss thinks it’s okay, because you have 16 other cars to choose from – not realizing that your specific MEDICAL needs are for one of the four he has chosen to not provide. So instead, your boss asks the government to keep him from offering these four cars, even though that until 2012, he offered all 20 cars, and only stopped offering them in order to go against a president he loathed.
Your argument is pathetic.
@jim m:
But those same people are free from other obligations and responsibilities because of their incorporation.
In a just world you would not be free to pick and choose when you were responsible and not.
Until yesterday.
Religion can be anything to anyone. Thus the separation of church and state.
Republicans are no longer Conservatives. Y’all are now simply radicals.
@jim m:
I’ve read through a lot of these comments and I don’t think that is a claim many people here are making. People here did say this will make it financially difficult for many women to get contraception. But that’s not the same thing as saying the ruling ‘stops’ or ‘prevents’ women from getting contraception on their own.
@jim m:
From the opinion:
@beth: When did I make any comment on a 83 YO woman? I suspect you have me confused with someone else. I have only been posting here for 2 days.
I agree that your medical choices are your own business. However, once you ask someone else to pay for those choices you do lose some aspects of your privacy. In this case the court has ruled that you cannot ask someone to pay for something that would violate their religious conscience. However, I also believe that if there were a medical condition that required a specific treatment that in those cases there might be a cause to override that employer’s objection. But it would have to be a medical condition not merely a choice that you don’t want to get pregnant.
@EddieInCA: Yes exactly. The court does not rule on those other issues. The court could entertain a case on those issues in the future should one arise.
@qtip: Simply making some forms of contraception financially difficult does not mean that you are barring people from all contraception. And that is what people are suggesting. And I do not find it anywhere said that you have a right to have everything you want and never have any financial difficulty in getting it.
@jim m:
I think the “lifestyle choice” criteria is a tricky one to implement.
I know this has been asked of you before, but I don’t remember seeing a definitive answer. If things that are lifestyle choices should not be covered by insurance, then which things would be in that category? Should insurance cover injuries from skydiving, skiing, driving over the speed limit, drinking, smoking, use of illegal drugs, listening to overly loud music, etc?
@EddieInCA:
That word… Necessarily … Is a huge open door .
@C. Clavin:
Yep. As I have asserted before you are wanting to punish people for exerting their rights to religious freedom. In order to have those rights they are going to be forced to give away their rights. That pretty much makes you a bigot. You think that people should have to trade one right in order to have another. That isn’t how rights work. If you have a right, you have it. Rights are not dependent upon your trading something to have them.
@jim m:
Why? Why doesn’t this new law overrule the old one? Doing peyote was “outlawed by a separate statue”, too, but the RFRA put a stop to that. What’s different about polygamy?
Huh? What does that have to do with your claim that the RFRA protects people from having their religious beliefs trampled by The Government?
@jim m:
Where are people suggesting this? I really did read through the comments to this thread and yesterday’s giant thread and I don’t remember seeing that argument here.
@jim m:
That’s you from yesterday and it’s creepy. Trust me.
And that’s all that needs to be said. Once my employer enters into it, it is no longer my choice. They are not paying for my medicine, it is a benefit earned given in lieu of compensation. If they give me two weeks paid vacation are they free to tell me I can’t go certain places or volunteer to escort women having abortions? Can they refuse to pay me the vacation time earned because they might disprove of how I use it?
@jim m:
Why not? Serious question.
As Justice Ginsberg noted, why can’t a corporation, closely held by people who are religiously barred from blood transfusions (Jehovah’s Witnesses), antidepressants (Scientologists), and vaccinations (Christian Scientists) have the same remedy?
Alito says it’s not about those cases. But its logic certainly applies: If I believe that vaccinations are morally wrong, my company should not have to provide coverage for them. If I have a “sincerely held belief” that blood transfusions are morally wrong, my company should not have to provide coverage for them? Same with vaccinations.
Why is this not a consistent reading of the majority opinion?
@C. Clavin:
You obviously cannot read. What the ruling says is that it applies to only the contraceptive mandate and that it does not follow that other things like vaccines and blood transfusions are also entitled to the exemption being given for the contraceptive mandate.
The “necessary” is simply stating that those things are still covered. Yes, it leaves the door open to other cases and further rulings. but that would require a determination from SCOTUS to establish exemptions for those things.
@qtip: No one said anything about barring people from getting contraception. There are women who will not be able to afford it if it is no longer covered or will choose to spend their money on other lifestyle choices like food or rent.
@jim m:
In this case, the right is dependent on being religious though. An atheist like me does not have this right, correct? It doesn’t matter if I object to contraceptives…if I don’t object to them on religious grounds then I’m out of luck and have to include them in my insurance plan.
@jim m:
That’s not at all what I typed.
You are just making shit up.
If you cannot have an honest discussion…see ya.
@beth:
Right, I think that’s what I said too. I think we are in agreement.
@EddieInCA: The ruling does not apply in those cases because the merits for those things were not argued. I agree that there is reason to believe that some of those things could get exempted. In my opinion I see no reason to not exempt at east some of those as well if we are to be consistent. I said that in a previous comment.
It really doesn’t bother me if they do get exempted. I simply wouldn’t work for a company that wouldn’t provide the benefits I wanted/needed. There will be no shortage of employers who will not be allowed or who will not take such an exemption.
@C. Clavin: LOL
@ jim m
Considering the number of made up “facts” you trotted out yesterday, you are either ragingly misinformed, or have no interest in “good debate.”
I don’t dismiss the possibility that both things are operating in tandem.
@qtip: On what basis would you object to contraceptives? Do you understand the religious and philosophical roots of the Catholic objection to contraception and abortion? It goes back to at least the 14th century and Aquinas.
It seems that you misunderstand the point. There is an issue of conscience and religious conviction here. As I grew up an atheist I will admit that I did not understand that. Once I came to faith I did.
I am trying to think of an issue that atheists have a moral conviction about that is unique to atheists but I am not aware of any.
@jim m:
Perhaps if sex for you wasn’t a “lifestyle choice” you wouldn’t be so confused .
Just sayin ‘
@ jim m
Who is suggesting this? Be specific.
@anjin-san: If you want to debate facts we can. There was a wide ranging discussion about healthcare, survival vs mortality rates and rates of disease incidence. I provided links to my data and my data actually coincided with links that others provided against me. The issue is more in how people interpret the data and not in the data themselves. I suppose for someone not in the medical field they might not understand the issues and how to interpret data and the relationships between disease incidence and mortality.
I really don’t care to try to teach you about those things though.
@anjin-san:
Anyone who has claimed that this is an attack on women. It does not foreclose on all forms of contraception, yet people are nearly jumping off of buildings because the world is ending. Twitter was alight yesterday with idiots saying that people should burn down Hobby Lobby stores.
People have been saying that this allows employers to dictate what happens in your bed. It is far from it.
@jim m: “And also the issue of contraception is not specific to Christianity. You can find the same convictions amongst Muslims and Jews. What do you have against Muslims and Jews that you don’t want to mention them? Or is it that you just have something against Christians?”
Speaking as a Jew, I can say with no fear of being contradicted, that you have no idea what you’re talking about.
Or, more likely, you’re conflating extreme Orthodox Jews with fundamentalist Muslims and radical Christians and claiming the views of these tiny minorities represent the entirety of the religion. If you feel comfortable with this level of dishonesty, why should anyone take you seriously on any subject?
Although it’s possible you’re simply completely ignorant of anyone who isn’t you. After all, you do seem to be a libertarian.
@C. Clavin: As I said to kansasmom, sex is not a lifestyle choice but how you do it is. Apparently you are unable to read or just so dishonest that you chose to ignore what people say. I rather suspect the latter.
@jim m: “As I have asserted before you are wanting to punish people for exerting their rights to religious freedom.”
So let me make sure I have this straight. The decision of when or whether to procreate is a “lifestyle choice.” But the “religious freedom” of being able to force other people to follow your own religious dictates is not.
Got it. Nice to see you’ve got your priorities straight.
You know, I really don’t give a flaming f**k. And I am saying that with my wife, who is a practicing Catholic, cooking me dinner in the next room.
When you try to bring your convictions into my life, we are going to have a problem. I’ve been a non-drinking bartender, and a vegetarian waiter serving people steaks. Different strokes for different folks. When one man’s of beliefs trumps that of another, we are starting to wander away from what America is about.
@wr: I did not mean to imply that it applies to all Jews or Muslims, just as I think everyone understands that the same convictions are not shared by all Christians or Catholics. My point was that the protection for religious convictions applied to all of those groups since there were those within each group that do feel that way. I know full well that most Jews do not feel the same way as some Orthodox Jews feel and did not mean to imply that everyone believed in the same way.
@jim m:
Oh…so missionary to bear children is OK…but anything else is unconstitutional.
Buy a dog…name it Clue…then you will have one.
@wr:
Someone was just asking what kind of moron (I paraphrase) was saying that Hobby Lobby was denying contraception to all women. I now have a perfect example of someone who thinks that women are incapable of making other choices and that they are incapable of paying for something on their own.
@ jim m
Please. You were spinning utter nonsense about how if a child in Toronto does not get his bone marrow transplant by June they are essentially left to die, and how children’s hospitals are the only places they can get treated.
@anjin-san: WTF? How is it that you think that you can have unlimited choices and that other people should have to pay for those unlimited choices no matter how they feel? Who the F are you that you think that if you want the one thing that other people object to that they should be forced to provide that for you even though there are other choices that will provide you the same thing?
This is the problem that you don’t respect other people’s rights. You think that your rights should trump everyone else’s rights. I’m sorry but sometimes you can’t get everything you want. That is just the way that it is. Accepting that sometimes you have to make a compromise between what you want and what other people want is called tolerance.
@anjin-san: Yes, that came from a conversation I had with their director of transplant. I really don’t give a damn if you don’t believe me. Frankly I don’t think you would give a damn if I could prove to you that it was true. I really don’t think you give a damn about what happens to other people as long as you get your way.
@ jim m
I actually don’t think you are as stupid as this makes you sound, but it’s bad enough that I am not wasting any more time on you.
@C. Clavin: so what, hl still provides these “BIRTH CONTROL” things. you’re hysterics are hysterical.
1) Female condom
2) Diaphragm
3) Cervical cap
4) Cervical shield
5) Vaginal ring
6) Sponge
7) Spermicide
8) Skin patch
9 and 10) IUD (2 types)
11) Implantable rod
12 and 13) The pill (2 or 3 types)
14) Shot/Injection
15) Tubal ligation
16) Sterilization implant
@anjin-san: You asked if people were saying that this was stopping women from getting any form of contraception and WR just said that it was. You wanted someone specific and now you have that.
@ jim m
Can’t let this pass. It’s been pointed out quite a few times since yesterday that health insurance is compensation. Employers do not pay for it, any more than they are “paying for” the tank of gas an employee buys with money from his paycheck. You are making a fundamentally dishonest argument.
And before you get too worked up about me wanting others “to pay for my choices” (don’t want you to jump off a building) – I am currently a 1099 guy and carry my own insurance. So spare me the BS moral indignation.
You know, what is funny is that the whole contraception issue doesn’t mean a thing to me. If I were running a business I wouldn’t have any problem with it.
What gets me is the religious liberty aspect. People have religious beliefs but it seems that people who don’t share those beliefs or who are not religious, think that people who do have those beliefs should not have the right to express them in any meaningful way.
You don’t have to agree with someone’s religious beliefs or like their religion, to respect them enough to not force them to violate those beliefs.
@anjin-san:
That makes no sense at all. Employers pay for compensation. Your salary is compensation. According to your illogic, employers do not pay your salary. Who does pray tell?
You are correct. Arguing with you is pointless since you have zero clue about what is going on.
@jim m:
Yes, we get that. What we also get is that no legal basis for this narrow application was given — the actual arguments made in support of the decision SHOULD apply much more broadly. The majority rationale for restricting the application to contraception is, essentially, “because we’re the Supreme Court and we said so”.
The Court did not argue that contraception is a lifestyle choice, and thus mandatory coverage is not appropriate. The Court did not argue that religious beliefs regarding abortion are more deeply held than other religious beliefs, and thus deserving of greater protections. The Court did not argue that corporate persons can have religious beliefs regarding abortion and contraception, but not about other things. The Court did not make any argument whatever about why the logic of the ruling applies solely to contraception.
Which leads a lot of us to suspect that they are hiding their actual, indefensible reasons.
Regardless of whether it’s good policy, it’s bad law. Really, really bad law.
@anjin-san: Your analogy to buying gas for your car would work if employers gave you money and you paid for your insurance entirely yourself with no employer contribution. But that is not what happens. Employers chose an insurance plan and pay for part of that insurance themselves. In that regard it can violate their religious conscience if they are forced to provide an insurance plan that they object to on religious grounds.
@DrDaveT: There is a lot of really, really bad law so this one won’t be in want for company.
@ jim m
You don’t know me pal, and if you really did practice Christian principles, you would not presume to judge me so, especially based on a few comments on a blog.
I have an adult son with a life threatening illness. I take care of him 7 days a week. I also take care of my 80 year old mother who has been through two bouts of cancer. I’m 55, and I don’t have as much energy as I once did. I also work full time. So you see, pretty much my whole life is taken up by taking care of others and making sure they get what they need.
Thanks, though, for giving us a peek into what goes on in the mind of a good conservative Christian. Now why don’t you run along and spend an hour or two patting yourself on the back for having “come to faith ”
Somewhere Jesus is sighing a heavy sigh, and wondering why so many who praise him understand so little of what he taught.
@anjin-san
Amen, brother. This can’t be said enough. It’s all about mercy and grace, two attributes most Christians I meet are sorely lacking.
@anjin-san: I don’t claim to be a “good conservative Christian”. And my politics trend more conservative libertarian than straight conservative. As for being a Christian, I never believed that it meant being a doormat.
And I have plenty of criticism about Christians. First and foremost is the pretension that they are somehow sinless. Christians are no different than anyone else. There is a difference between having an ideal and actually achieving it.
@jim m:
My religion requires live human sacrifice. You OK with that?
Now that we’ve established that just being a sincere religious belief is not enough, we’re back to the question of where to do draw the line. Historically, the line has been drawn at the point where the government believes they can assert a legitimate public welfare interest or ethical mandate in suppressing the religious practice. That was the argument against polygamy (whether one agrees or not). That’s the argument against human sacrifice, or animal sacrifice. That’s the argument against female circumcision among various African emigrant populations.
At some point, you have to accept the fact that our civil society finds some religious practices to be unacceptable violations of either basic human rights or the best interests of society. Allowing people to not immunize their kids is insane from a public health point of view. Allowing people to mutilate their children for religious reasons is ethically indefensible. Once you recognize that just being a sincere religious belief is insufficient justification, everything has to be dealt with on a case by case basis. Reasonable people can reasonably disagree on where to draw that line, but “people who do have those beliefs should have the right to express them” is nonsense — especially when that ‘expression’ goes way beyond the verbal.
@jim m:
The employee, via their labor which they offer to the employer, who then trades them an amount of compensation equivalent to the value of their labor.
Compensation is an equal exchange of cash, benefits, stock options etc. for labor – it is not a gift by the employer. It is not a present.
@Rafer Janders: Agreed. Compensation includes all of those things. Employees agree to work for a compensation package that includes many different things. However, most employment agreements state that the employer has the right to change the benefits. I have never worked for an employer who guaranteed that the health care plan would never change.
The comment that anjin-san made was that employers do not pay for your compensation. He probably misspoke because that position is nonsensical. But it is still funny that he said it.
@jim m:
“But I tell you not to resist an evildoer. On the contrary, whoever slaps you on the right cheek, turn the other to him as well.” — Matthew 5:39
“If you are sued in court and your shirt is taken from you, give your coat, too.” — Matthew 5:40
“And if anyone forces you to go one mile, go with him two miles.” — Matthew 5:41
“If someone slaps you on one cheek, turn to them the other also. If someone takes your coat, do not withhold your shirt from them.” — Luke 6:29
“Give to everyone who asks you, and if anyone takes what belongs to you, do not demand it back.” — Luke 6:30
@ Rafer
Maybe you can explain to jim how operating costs work. Be sure to bring crayons. I am off to take care of my kid. BBL.
@jim m:
Once again, no one is asking “someone to pay for something.” The employer does not “pay” for the health insurance, as the health insurance is the benefits portion of a compensation package exchanged in equal value to the employee’s labor. When I use my health benefits, my employer is no more paying for my health care than it is paying for the prostitutes, cocaine and pornography I buy with the cash from my paycheck.
@Rafer Janders: Luke 22:36 He said to them, “But now if you have a purse, take it, and also a bag; and if you don’t have a sword, sell your cloak and buy one.”
And as I said above, no one is sinless and there is a difference between having an ideal and achieving it. I make no claims at being a good Christian. I never made any claims to be sinless.
The biggest problem that Christianity has is acting like they are without sin. It’s funny because they say that churches are “hospitals for sinners” but then they pretend that they don;t need treatment. Everyone is a sinner and will be until they die.
@jim m:
No, he’s entirely correct. Do you think that your employer pays for the food you eat or the mortgage you pay or the clothes you wear — or do you pay for it with your own money, money you get after you deposit your paycheck, a paycheck you earn with your own labor?
Yeah, Jesus probably didn’t really mean it.
Luke 6:27-30
27 “But to you who are listening I say: Love your enemies, do good to those who hate you,
28 bless those who curse you, pray for those who mistreat you.
29 If someone slaps you on one cheek, turn to them the other also. If someone takes your coat, do not withhold your shirt from them.
30 Give to everyone who asks you, and if anyone takes what belongs to you, do not demand it back.
Matthew 5:38-42
38 “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’
39 But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also.
40 And if anyone wants to sue you and take your shirt, hand over your coat as well.
41 If anyone forces you to go one mile, go with them two miles.
42 Give to the one who asks you, and do not turn away from the one who wants to borrow from you.
@jim m:
That’s really not the biggest problem….
@Rafer Janders: Sigh. The employer pays for all your compensation. Do you think that health insurance miraculously appears with no one paying for it?
Yes you earn your compensation by your labor. Your employer pays you with money(your salary) and with benefits. Health insurance benefits are essentially a barter where the employer procures those benefits and gives them to you in lieu of additional salary. SO yes, the employer pays for your benefits. Otherwise you would pay for all your benefits. (and yes I am aware that employees usually make a contribution to their health plan but that is only a fraction of the total expense.)
@jim m:
Sure, they have the right to change the benefits offered. They don’t, however, necessarily have the right to dictate how and why you will use your earned benefits, which is what Hobby Lobby is doing here. Once the benefits are earned via labor, they belong to the employee, not the employer.
@jim m:
None of your words address the issue. Let me try one more time.
There are atheists that are anti-abortion – I don’t see how this is something you could dispute unless you are ready to claim that there is not a single atheist in the entire country that is anti-abortion? There are many ways they could come to their beliefs that are not religious. Just because you cannot envision this, does not make it untrue.
If these atheists ran a business, they would be forced to include the contraceptives under discussion here in their insurance plan. They would be unable to claim an exemption because their beliefs are not based in religion. Therefore, religious people now have a right that others do not. Atheists are now denied a right due to their lack of religious belief.
@jim m:
So no, the employee pays for the their benefits via labor.
It’s an exchange, which is what you don’t seem to be understanding here. It’s not a gift by the employer. It’s not a charity. It’s not a present.
Let’s put it this way: according to you, your employer pays for your salary. Do you believe that the employer has the right to dictate to you what you are and are not allowed to do with the money in your bank account? Can an Orthodox Jewish employer, for example, forbid you from buying pork chops at the grocery?
If not, then the same applies to the benefits portion of the compensation package: once earned via labor, it belongs to the employee, not the employer, and the employer is no longer free to dictate how and why it is used.
@jim m: Thanks for your advice Dr Jim. I’m so thankful that I don’t need to consult my gyno and can instead rely on some whack job on the internet. You mentioned you are in the blood business. Are you a phlebotomist? Or maybe you sell plasma? You talk a big game but you don’t seem to know the first thing about medicine.
@Rafer Janders: Not true. They are not saying how you can use those benefits. They are saying what the scope of those benefits will be. If they were saying how you will use the benefits then they would be telling you what you would buy and when and from whom. There are many choices still available and you have the choice to select any one of them or none of them.
So my current benefit plan does not include Chiropractic coverage. I have had plans in the past that covered it. Is my current employer dictating to me how I will use his benefits? No. He is just defining the limits to the plan. I could get PT instead and that would be covered. I could also choose to see a chiropractor and pay out of my own pocket.
I think it is a mistake to say that the employer is dictating how people will use the benefits when there is still a great deal of autonomy available. And while some have said that this is allowing the employer to prevent employees from buying contraception, they remain perfectly free to do whatever they want to with their own money.
@KansasMom: I am a medical technologist and have managed the Blood Bank for a major university hospital ranked in the top ten in the nation. I have run a bone marrow transplant lab and helped write the first industry standards for how those labs should be run. Yeah, I know what I am talking about.
@jim m:
There’s several options: he was lying to you, he was misinformed, you didn’t understand what he was saying, you misheard him, he misspoke, you’re lying now, etc. Doesn’t matter. In all cases, this example is wrong, and in fact children in Canada are not just left to die if one hospital isn’t able for whatever reasons to perform a bone marrow transplant.
jim m says:
Yet Hobby Lobby had NO PROBLEMS offering these EXACT SAME DRUGS before 2012.
So… there’s that.
http://www.politifact.com/punditfact/statements/2014/jul/01/sally-kohn/did-hobby-lobby-once-provide-birth-control-coverag/
From the piece:
Hobby Lobby’s Supreme Court victory over the federal government’s contraception rule set off a fast-breaking wave of punditry on national TV. CNN brought in liberal pundit and contributor Sally Kohn, who panned the court’s 5-4 decision as disastrous and Hobby Lobby’s intentions as disingenuous.
“Hobby Lobby provided this coverage before they decided to drop it to file suit, which was politically motivated,” she said.
We can’t determine if politics motivated the company, but we did wonder whether Hobby Lobby covered the types of birth control at issue in its lawsuit but dropped the coverage before filing its complaint.
The short answer: Yes.
The Green family, which founded Hobby Lobby in Oklahoma City in 1972, said as much in its original complaint.
The Greens re-examined the company’s health insurance policy back in 2012, shortly before filing the lawsuit. A Wall Street Journal story says they looked into their plan after being approached by an attorney from the Becket Fund for Religious Liberty about possible legal action over the federal government’s contraceptives requirement.
That was when, according to the company’s complaint, they were surprised to learn their prescription drug policy included two drugs, Plan B and ella, which are emergency contraceptive pills that reduce the chance of pregnancy in the days after unprotected sex. The government does not consider morning-after pills as abortifacients because they are used to prevent eggs from being fertilized (not to induce abortions once a woman is pregnant). This is not, however, what the Green family believes, which is that life begins at conception and these drugs impede the survival of fertilized eggs.
At any rate, Hobby Lobby stopped covering those drugs in its plan and took the health care contraceptive mandate to court, represented by the Becket Fund.
Actual religious liberty?
Or cynical political ploy?
You be the judge.
@Rafer Janders:
No. The employee earns those benefits with his labor. If the employee were paying for the benefits with his labor then he would be providing the labor to the insurer who provided the health care benefit. But the employee does not provide labor to the insurer, he provides his labor to the employer. the employer then procures insurance and provides it as part of the compensation package to the employee.
I agree that it is not a gift from the employer. It is part of the employment contract.
I said specifically before that the employer does not tell you how to use your insurance benefit. The employer only tells you what it covers and what it does not. Have any of you actually had jobs? Because it doesn’t seem like you have ever had to deal with benefits or salary negotiations.
@jim m: The employer is not paying for employees’ birth control, anymore than paying them a salary is paying for their birth control. They pay for insurance, which may or may not be used for birth control–just like an employee’s salary may or may not be used for something the employer finds objectionable.
Furthermore, most insured employees, unless they have a Cadillac plan (*which I don’t think Hobby Lobby does), are paying part of their premiums along with co-payments and deductibles. Since the employer should have no way to know how an employee uses their insurance, given privacy laws, then they can easily conclude that their portion covers the parts they are OK with, while the employee’s portion covers the rest. After all, if one’s paycheck is fungible (as some on the pro-HL side have argued), why isn’t the health insurance payments, a great percentage of which is coming directly from the employee’s pocket?
@EddieInCA:
Yes, and I said that it was important to know whether or not Hobby Lobby knew that their plan covered these things prior to obamacare. If they knew that these were covered and did nothing then they should forfeit their right to an exemption.
@jim m: But why should it be the employer’s business to know what that condition is before the employee can be covered?
@Rafer Janders:
You left out the options that I am telling the truth and that you are an ass. the fact that you left those out (well, at least the first one) shows that you really aren’t arguing from any sort of honest position.
@Monala: The employer doesn’t have to know what the condition is, only that the treatment is medically necessary.
@jim m:
Apparently not about medical procedures in Canada. To wit, here’s what you said:
In Toronto the Hospital for Sick Children does bone marrow transplants for kids with leukemia. Years ago I spoke with their transplant team and they lamented the fact that after June they were unable to do any more transplant because they had already reached their budgeted treatments. If your child needed a transplant your only choice was to wait until the next year and hope that they were still alive and healthy enough to get treated.
(i) hospitals don’t budget specific amounts for certain medical procedures such as bone marrow transplants and then if the money runs out (in June!) they no longer offer those procedures, even when medically necessary. That’s not how budgeting works.
(ii) children can in fact be given bone marrow transplants at hospitals that are not specifically the Toronto Hospital for Sick Children, so even if this one hospital wasn’t able to do the transplant, the child would have been transferred somewhere else for the procedure.
@Monala:
But if the insurance is providing the birth control and the employer is providing the insurance then the employer is construed as facilitating the use of the product that is religiously offensive. That is the reasoning and has been the reasoning that the courts have used going back for a long time.
@Rafer Janders: You said before that children were not just left to die. I did not say that. I said that they could not get the transplant they needed until the next budget year. There is a big difference. The patients still get treated, just not the treatment that they might need for a permanent cure.
I did not claim that sick kids was the only hospital in the universe much less Canada where they could get transplants.
@jim m:
And how does the employer procure insurance? With money paid to the insurance company. And where does this money come from? From the value of the labor performed by the employee, which is transformed into goods and/or services, which customers or consumers then pay for with cash.
No labor by the employee, no cash paid by customers for goods and services, no cash for the employer to procure insurance coverage.
Therefore, the insurance ultimately comes from the employee’s labor. The employer doesn’t just magically pull this money out of its own pocket, you know, or conjure it out of thin air.
@jim m: @jim m: I have 3 kids from 2 pregnancies. I hemorrhaged both times, severely with my 2nd pregnancy, a vaginal twin birth. Not getting pregnant is a medical issue you ignorant fvck. I doubt I would die, modern medicine is awesome, but I don’t want to take the chance. And I’m 40, a newborn is the last thing in the world I want. Oh yeah, also an atheist, one of those people who don’t have rights under RFRA. I’ve been following this blog for 3 years and I have got to say that you are the most arrogant ass who has ever posted.
@jim m:
What fraction? My current employer pays 100% of my own insurance, but employees have to pay 100% to cover any family members (which, in the case of my family, was a lot more than what my employer was putting in). And that’s not including the deductibles and copayments I pay. At my last job, my employer paid 40% of the premium, and employees paid the other 60%.
Let me put it this way: let Hobby Lobby try running its stores next week with no employees. No one works there, no one opens the doors, no one stocks the shelves, no one orders goods from manufacturers, no one mans the cashier. Then let’s see how much money Hobby Lobby generates that week.
@Rafer Janders:
By your reasoning the employer is a parasite that provides nothing to the employee but only takes from them.
That is not the case. The employer takes goods/services and provides them to a customer. the customer pays the employer The employer pays his employees to provide those goods/services. If the employee were being paid by the customer directly your idea would be accurate, but that is not true.
The employee earns his compensation, which is provided by the employer. the customer does not provide the employee any compensation. The customer has no input into what, if anything the employee is paid. It is a fatuous claim that the customer is paying the employees directly.
@Rafer Janders: By the same token let the employees not show up to work and see if they get paid.
@jim m:
In black and white, here’s what you said:
If your child needed a transplant your only choice was to wait until the next year and hope that they were still alive and healthy enough to get treated.
“Hope that they were still alive” is the same, essentially, as saying they were left to die.
Once again, in black and white, here’s what you said:
If your child needed a transplant your only choice was to wait until the next year and hope that they were still alive and healthy enough to get treated.
If there were other hospitals to perform the procedure, then why did you say “your only choice” — once again, ONLY CHOICE, in your own words — was to wait until next year? If there were other hospitals that could perform the transplant, then waiting until next year was not, in fact, the only choice, was it? It wasn’t even a very reasonable choice.
@KansasMom: And if your not getting pregnant was such a medical risk that it must be avoided at all costs and the only way of preventing it would be to use one of the methods that HL won’t pay for then you would have a point.
RFRA was passed (and signed by Bill Clinton) because it wasn’t atheists who needed their rights protected.
@Rafer Janders: Yes. If you talk to most people they are not willing or often able to travel across the country for medical treatment. I have seen people unwilling to go across the metro area for a different hospital. I stated that they could not get the bone marrow transplants not that they could not get any therapy at all. Sorry if that was not clear.
@jim m:
Under this reasoning, if the paycheck is providing the cash with which I buy my whiskey, and the Mormon employer is providing the paycheck, then the employer is is construed as facilitating the use of the alcohol that is religiously offensive. Why shouldn’t my Mormon employer be allowed to forbid me from buying any alcohol?
@Monala:
And as I noted above, 100% of the money the employer uses to pay for the premium is generated by the value of the labor performed by the employees. The employer doesn’t have its own private cash hoard to buy insurance, separate and above from the money the company generates via the goods and/or services made and/or offered by the employees.
@jim m:
Whoa, whoa, whoa. What? What? First, who said anything about “across the country”? What about just down the street to the next hospital in Toronto — you know, the fifth most populous city in North America with many many hospitals and treatment centers — or to Montreal, Quebec City, Windsor, Ottawa etc.?
Second, most people are not willing to travel across the country TO SAVE THEIR CHILD FROM DYING OF LEUKEMIA? Are you serious with that nonsense??? Which one of us do you think is dumb enough to fall for that?
Once again, in black and white, you stated
If your child needed a transplant your only choice was to wait until the next year and hope that they were still alive and healthy enough to get treated.
If there was other therapy other than bone marrow transplants that would be effective, then “your only choice” — in your words, YOUR ONLY CHOICE — was not, then, simply to “hope that they were still healthy and alive enough to get treated”, was it? Was it? They had other treatment options.
Um, yeah. We’re all sorry we had to read that.
@jim m:
Exactly. It’s an even exchange.
@jim m:
You’ve seen people unwilling to go across the metro area to a different hospital if doing so WOULD SAVE THEIR CHILD FROM DYING OF LEUKEMIA?
Really?
Really?
Still claiming that you’re not lying, are you?
And so to bed…
@ Rafer Janders
Yes, and this is coming from someone who wants us to think he has expertise in the healthcare field.
@jim m:
Ah. It’s just a matter of clarity. Of precision in writing. So when you originally wrote:
If your child needed a transplant your only choice was to wait until the next year and hope that they were still alive and healthy enough to get treated.
what you really meant to write was:
If your child needed a transplant you also had a multitude of options available to you, including pursuing other forms of treatment besides bone marrow transplants, which you could get immediately started on while they were still alive and healthy.
You just weren’t clear….
@anjin-san:
On the Internet, no one knows you’re a dog.
@jim m:
I have, in fact, talked to most people.
And what they’ve told me is that this is not true.
Most people are, in fact, willing and able to travel across the country for medical treatment TO SAVE THEIR CHILD WHO IS DYING OF LEUKEMIA.
Hmm. My wife would pretty much crawl across a desert of broken glass to get our kid something he needs to help keep him alive. I am thinking she would probably also drive across town.
This clown has been here, what, two days? He is already pretty much in the BS hall of fame.
I have some friends who live near me in California. A few years ago their daughter was stricken with a rare cancer. They made countless trips from Sonoma to SF. Then they made a number of trips to Houston for treatment. Then they made a number of trips to NYC. If a new treatment that gave them some hope cropped up in Mongolia, I have no doubt they would have made that journey.
@ beth
The teachings of Jesus are a fine guide for anyone pursuing spiritual growth and/or seeking to become a better person. The problem is that to practice what he taught is not that easy. It’s much simpler to constantly invoke his name, cherry pick the Bible, and congratulate oneself for being godly.
A lot of “but the employer is paying for it” nonsense here. But it’s worth noting another way that claim doesn’t add up. By paying those wages in the form of health insurance benefits, the companies are receiving preferential tax treatment, so at best the employer is paying for 2/3 of the health insurance and the federal government is picking up the rest. Not only is the government helping them pay for the insurance, their employees are not eligible for subsidies on the exchanges, so Hobby Lobby is preventing them (female employees) from obtaining comprehensive health insurance. Sure they can buy unsubsidized policies, but that seems like a fairly significant impact.
I’m thinking that if, for some reason, I can’t get my kid the bone marrow transplant at the Children’s Hospital inToronto then I am off to the Leukemia/Bone Marrow Transplant Program in Vancouver
Don’t feel like traveling? Well, there is the Princess Margaret Cancer Centre, which just happens to be in Toronto.
Took about 15 seconds on Google to get this information. But then, if you ask most people who have a child with a life threatening disease, they are not willing to go to all that trouble.
@jim m:
A glimmer of light appears in the east… Wait for it…
@jim m:
My religion requires live human sacrifice. You OK with that?
Now that we’ve established that just being a sincere religious belief is not enough, we’re back to the question of where to draw the line. Historically, the line has been drawn at the point where the government believes they can assert a legitimate public welfare interest or ethical mandate in suppressing the religious practice. That was the argument against polygamy (whether one agrees or not). That’s the argument against human sacrifice, or animal sacrifice. That’s the argument against female circumcision among various African emigrant populations.
At some point, you have to accept the fact that our civil society finds some sincere religious practices to be unacceptable violations of either basic human rights or the best interests of society. Allowing people to not immunize their kids is insane from a public health point of view. Allowing people to mutilate their children for religious reasons is ethically indefensible. Once you recognize that just being a sincere religious belief is insufficient justification, everything has to be dealt with on a case by case basis. Reasonable people can reasonably disagree on where to draw that line, but “people who do have those beliefs should have the right to express them” is nonsense — especially when that ‘expression’ goes way beyond the verbal.
@anjin-san:
Yes, but those friends aren’t like most people. Most people would just let their child die rather than make an inconvenient trip across town, much less to another city….
@anjin-san:
But that’s all the way across the country!!!
But that’s across the metro area!!!
Meanwhile:
New shit has come to light:
(Credit to Sully)
@jim m:
Um, what? Sure we do. Freedom OF religion is also freedom FROM religion.
@jim m:
You are aware, aren’t you, that getting pregnant is a medical condition?
You generally only hear this sort of nonsense from a man, the claim that pregnancy is somehow not medical in nature, that it’s something that just kind of happens to women, unrelated to medicine, and not requiring numerous doctor’s visits and hospital stays and increased risks of morbidity and mortality.
@Rafer Janders:
Not anymore. Not after Monday.
Now it is the freedom for Christians (but not real honest-to-God Christians) to impose their bastardized view of their religion on everyone else.
@sam:
I’ve seen this…but there is some question as to its validity.
In any case it is certainly clear that the abysmal ruling passed down on Monday leaves the door open to this…if not now it’s just a matter of time.
@sam: Yes, the slippery slope has begun.
The other issue not highlighted is that the SCOTUS did not consider the validity of the religious beliefs (nor should it probably want to) of whether IUD are abortifacients,which was the Hobby Lobby objection. Nor did it face the belief that life begins at conception.
It basically said it has to take such beliefs at face value and not judge the truth or falsity of such beliefs. Yet another slippery slope.
And a road to chaos.
And from Jeffrey Toobin:
http://www.newyorker.com/online/blogs/newsdesk/2014/06/hobby-lobby-the-supreme-courts-narrow-decisions.html
@jim m: First, the employee is earning her health insurance as part of her compensation and the employer is getting a tax benefit for providing it, whether he or she discriminates based on the services provided because of the sex of the employer. The employer is not “paying for it,” rather the employee is earning it as part of the labor she is providing to the employer. Second, following your logic, the employer who does not approve of a woman having sexual activity outside of marriage could decide that his or her religious beliefs forbid him or her from providing coverage to an unmarried woman employee who becomes pregnant for medical treatment during pregnancy and birth. Further, since shunning was/is a typical way of enforcing sexual morality on women, the employer could argue that since continuing to employ the now pregnant unmarried woman employee would be supporting her sinful “lifestyle,” he or she has the right to fire the person pursuant to their religious beliefs. This is “liberty” for me, but not for “thee.” Reminds me of the arguments of the aristocrats of France and Germany in the early modern age as they defended their “liberties” to oppressed their serfs and wage minor wars against each other without the interference of the King.
@EddieInCA: Wow, Eddie. That is a great analogy. You’re one of my new favorite people. <3
@Sherparick:
None of that matters…because now corporations are free to discriminate against those that don’t fit their bias. HL and 90% of the corporations in America are now free to become whatever they want to be…white only, Christian only, heterosexual only, male only…whatever they want.
All they have to do is claim a religious exemption.
Alito made it clear in the Majority Opinion that the genuineness of their religious beliefs matter not…facts matter not…only that they claim to have religious beliefs, and claim to believe whatever facts they claim to believe.
@jim m:
No, the biggest problem that Christianity has (in the context of the current discussion) is acting like they are the only actual religion, and that everyone else’s beliefs are rank superstition and/or ignorance.
There is zero chance that a Supreme Court with a majority of (say) Buddhists would have reached the decision those 5 elderly white Catholic male Americans reached.
@ jim m
Ummm. No. You stated:
So, were you lying then, or are you lying now? Or both?
@jim m:
Most bad law doesn’t count as all-but-immutable precedent. As we have seen in the past, it can take many decades for stupid and short-sighted Supreme Court rulings to get overturned, due to the understandable reluctance of any Court to label their predecessors as idiots. In the meantime, they do immense harm.
@anjin-san:
Or if that’s full up, how about Buffalo? Roswell Park Cancer Institute, “celebrating its ranking among the top 6 percent of hospitals for blood and bone marrow transplants, based on patient survival rates.” You can stay at the Kevin Guest house for free or nominal cost as it has dedicated rooms for bone marrow patients. Our pediatric unit is superb.
But what would I know, I’ve only worked there and with bone marrow patients for a few years in one of the premier cancer centers in North America. I’m sure the Blood Bank tech friends jim m’s talked about a teaching hospital for the University of Toronto to have the real deal…..
@KM:
Or the James Cancer Hospital at Ohio State in Columbus, Ohio, routinely voted one of the best cancer centers in the country, and only a 1.5 hour nonstop flight from Toronto? Or is that too far for most parents to travel to save their child’s life?
@jim m:
You are mistaken. Corporation are easily distinguished from a sole proprietorships and partnerships. For one, corporations are immortal.
I’m sorry but this too is incorrect. Subchapter S has no impact on control. It is simply a tax election unavailable to most entities other than corps, LLCs and certain types of limited partnerships.
@DrDaveT:
+ 10
If the Pope had decreed the pill to be acceptable back in the sixties, would this still be an issue?
@DrDaveT: If you vary the religion, as you did, it becomes crystal clear that the Court improperly elevated a religious establishment.
@jim m:
Some women, including yours truly, cannot take any form of hormonal BC. (Migraine w/aura, high risk for stroke.) This eliminates huge swath of reliable (95%+ efficacy) birth control. There are also women who, for medical reasons are strongly urged not to become pregnant–it is, in fact, a health risk for them (heart conditions, cancer recovery/treatment, etc.) Removing the copper IUD as a covered form of birth control is actually a pretty big deal.
These cases are not as rare and remote as people might think.
In addition to the comments about budgeting process above, and my own yesterday, seeing as how the Toronto Sick Kids hospital has operated in the black for the past number of years, I find the notion that any budgetary item was exceeded and couldn’t be met through a transfer from another item’s budget quite hard to beleive:
http://www.sickkids.ca/annualreport/index.html
The posters listing all the kinds of birth control the HL decision didn’t cover forgot to ask the 5 justices:
http://talkingpointsmemo.com/news/scotus-says-hobby-lobby-ruling-applies-broadly
@jim m:
Let’s get concrete. Here’s a historical counterexample:
You have been drafted into the Army. You refuse to serve.
Case A: You are a Quaker, and serving is against your religious beliefs.
Case B: You are a Jainist, and serving is against your religious beliefs.
Case C: You are an atheist with a strong moral objection to warfare.
Question: does the law treat you equally in those three cases?
Historically, the answer has been a resounding “No.” This Supreme Court decision relies on arguments that, in essence, would support and confirm that unequal treatment.
@Jen:
While this is an important fact in the broader discussion about what insurance should cover, I think it’s important here not to concede the bogus claim that health insurance should only be mandatory for things that aren’t partly your fault.
As others have pointed out, we require medical insurance to cover all kinds of near-Darwin-Award injuries and conditions, from Tylenol-and-whisky-induced liver failure to injuries sustained using homemade bungee-jumping apparatus. Nobody is arguing that they shouldn’t have to fund insurance that covers these things, or that men shouldn’t be covered for treatment of venereal diseases because dipping the wick is a lifestyle choice. That whole line of argument is a red herring, a magician’s misdirection.
@ pylon
I spent a few minutes on Google this morning looking for stories about Canadian children needed bone marrow transplants having to wait for budgetary reasons. Nada.
You would think that if this was happening in a major city like Toronto, there would be some stink about it.
This sort of nonsense is SOP for the right. We have been hearing how the “socialist” medical system in Canada, France, England, etc. are “on the brink of collapse” – this has been a steady drumbeat roughly since 1980. 34 years, that’s quite an extended brink.
The BS about the Canadian system is remarkable. I have a good friend in Canada who has been battling a life-threateing condition almost her entire life. She assures me that the care she has received has always been timely, with an outstanding standard of care. She does concede that Canadian tend to have to wait longer than Americans for elective treatments and procedures, but that she feels that living without the fear of bankruptcy due to medical costs more than balances that out.
The last time I brought that story up on OTB, one of our friends on the right assured me that no one in the US goes broke due to medical expenses.
Employee health insurance benefits are a form of compensation to the employee.
Corporate employers have 2 basic choices: (1) purchase group plan options that their employees select from, or (2) pay the employee the amount required for the employee to purchase their health insurance individually. Neither option changes the fact that this is compensation to the employee. Most employers choose the first option – not because they want to impose corporate religious beliefs on their employees, rather because of the tax advantages that accrue to the company and to the employee.
The Supreme Court majority – unlike millions of business managers and employees – does not consider employee benefits to be compensation, rather they consider health insurance benefits to be an extension of the religious beliefs held by the corporate directors and managers who purchase the benefit plans made available to their employees.
The Hobby Lobby 5-4 decision is judicial malpractice.
I don’t think we’ll see Jim M on this thread again today….
@ C. Clavin
I am pretty sure that a wealthy, powerful, married white man bending a younger employee over his desk for a quickie is also an approved form of sex on the right.
@DrDaveT: Agreed.
The whole “but only four forms were challenged” and “it’s a lifestyle choice–just pick another form!” irritates the heck out of me, because really, for many women, there just aren’t that many acceptable choices. Eliminating any approved method of BC is a problem–that’s all I was getting at.
@anjin-san:
I’m also pretty sure that that wealthy, powerful, married white guy bending that younger employee over his desk for a quickie is also using insurance-subsidized erectile dysfunction drugs to facilitate this very moral Christian occasion.
Boy, between this and the Defense of Marriage Act and the Iraq Liberation Act, Bill Clinton signed a lot of really, really, really bad laws, didn’t he?
Justice Clarence Thomas frowns upon your shenanigans
@Ken:
Does he speak while he’s frowning?
Nothing in particular wrong with the RFRA…it’s been around for 20 years…until it’s complete bastardization by Republican Activist Justices legislating from the bench on Monday when they decided that corporations had religious beliefs…for the very first time ever…and that an artificial legal entities rights trump the rights of natural persons.
DOMA was introduced by a Republican and passed by both Houses of Congress…both controlled by Republicans…with huge veto-proof majorities…Clinton called for it’s repeal.
Nothing wrong with the ILA…which essentially pledged support for Democratic groups inside Iraq that were committed to regime change…the problem was Republicans who used it in part as their justification for the biggest foreign policy cluster-fvck in this nations history.
@anjin-san:
Provided he calls himself a Christian and refuses to pay for her contraception on religious grounds.
Why yes, yes they did
@al-Ameda:
A perfect response, since I initially was going to write that Thomas “might have something to say about that”
In a move that should come as a surprise to no one, religious groups are already asking for more special rights in the wake of the Hobby Lobby decision.
http://talkingpointsmemo.com/livewire/religious-groups-lgbt-hiring-hobby-lobby
@anjin-san: Well that’s just nonsense. Will they discriminate against adulterers? Why are some sinners okay but others are not? Whatever happened to love your neighbor as you love yourself?
Of course, now Andrew Sullivan will finally find something about the decision to be upset about.
@Ken:
” the Republican Congress’s veto-proof supermajority”
Which veto-proof supermajority was that? After the 1994 election, the House was 230 R — 204 D. The Senate was 52 R — 48 D. In neither house were the Republicans anywhere near the 2/3 majority to override vetoes.
@ beth
That’s a fine question.
Pandora’s Box has been opened. Where this will lead us, no one knows, but I expect that it will increase the already considerable divides in our society.
@jim m: Ding, ding, ding. The copper IUD is the best choice for me as there is strong family history of stroke, which is only exacerbated by my age. You don’t know what you are talking about.
@KansasMom:
But did you ask your employer for permission? Really, a stroke seems like a small price to pay to make sure their feelings aren’t hurt.
/snark
@Moosebreath: Actually it was passed in 1993 but was overwhelmingly passed with votes from both parties (I believe it passed on a voice vote in the House). No one back then ever thought it would be used to give a corporation the rights the Supreme Court just granted them. It’s been a long time since I read it but I believe it refers to a “person” a lot in the Act itself.
@ KansasMom
It seems that a lot of our friends on the right do not understand that there are significant downsides to using the pill, and that other forms of birth control make sense, or are an outright necessity for many women.
But then it seems that there is a lot about women that they don’t understand.
@Ken:
I wondered when someone was going to call me on that. I will refrain from making the oh-so-tempting obvious jibe at Thomas here.
@David M: Heh, I work part time for 2 agencies specifically so I can buy insurance on the exchange and don’t have to a crap as to my employer’s opinions on it.
@jim m:
No, that is not the reasoning. Because if that were the reasoning, it would also apply to salary — the employer would have a right to deny salary to employees if those employees were going to use it to buy products (alcohol, pornography, logic textbooks) deemed offensive to the religious sensibilities of the proprietors.
Nobody is arguing that — so this must not be the reasoning behind what they ARE arguing.
@Jenos
Yes, yes he did. But since he can only sign what’s put in front of him, he only agreed with Congress’ lot of really, really, really bad laws. I’m not gonna defend Clinton here since these laws were crap from start but I’m obligated to point out that Congress shat these out first and then expected Clinton flush to afterwards. Do I wish he’d manned up and told them to stick it? Hell yes. But these are Congress’ turds and they’re very proud of them – don’t take that away from them, please.
@Ken: And…? Clinton still bears responsibility for what he signed into law.
I’d gain much more respect for a president who refuses to sign bad legislation, veto-proof majority be damned.
@anjin-san: “I am pretty sure that a wealthy, powerful, married white man bending a younger employee over his desk for a quickie is also an approved form of sex on the right.”
Sorry, but we all know the only wealthy, powerful, married white woman who ever had sex outside his marriage is Bill Clinton.
@wr:
“Sorry, but we all know the only wealthy, powerful, married white woman who ever had sex outside his marriage is Bill Clinton.”
Sex change operation in the White House, or just a typo — you be the judge.
@jim m:
No, what is objected to is that once incorporated the owners of said corporation now get to be a corporation when it suits their interests (taxes and limited liability) and pretend they are a partnership or sole proprietorship when it suits their interests (in the Hobby Lobby case etc).
@jim m:
That assumes, contra to the evidence, that 75% of Americans oppose the use of those types of birth control. That is ridiculous. Not even 75% of Catholics believe in Church teaching on birth control enough to follow it.
@jim m:
Other than the tax and liability protection that they get from incorporating. When you create a legal entity to stand between you and the obligations of a person, that legal entity should not retain all of your rights. You mentioned before how you hate free handouts, legally pushing off your responsibilities as a person while twisting the law to preserve all of your rights as a person is taking that free handout you claim to despise.
@jim m:
WOW! Weren’t you just castigating people about absolutism regarding women receiving particular types of birth control? Pot meet Kettle.
@DrDaveT:
Still waiting for an answer to this one…
@Moosebreath: Umm. I meant to do that. Because. Um. Well, you know…
@DrDaveT:
Clearly the answer is more atheist churches.
@Jenos Idanian #13:
at least 3
@Grewgills:
Really. All of this insistence that atheism is not a religion is clearly backfiring.
I see an enormous potential for a revival of the Church of the SubGenius here.
@jim m:
A couple points should be made here.
Not quite. It’s probable that SCOTUS didn’t even consider the argument; if they had, they would have asked the parties to brief it. Moreover, this specific issue — whether RFRA disadvantages atheists — wasn’t really part of the case. If justices were to rule on this, the plaintiff would have to be an actual atheist with standing.
Again, not quite. From my reading of RFRA and the Hobby Lobby case, RFRA actually privileges religious belief over nonreligious belief. Consider this, for example:
Three atheists and two agnostics own a closely held company that employes 5,000 people. After some discussion among them and after consulting the writings of prominent secular philosophers, the owners of this closely held company have concluded that most forms of birth control are unethical. Therefore, they refuse a government mandate to cover the forms of birth control. Government sues. They protest, saying their honestly held belief merits an exemption or accommodation.
Under RFRA as it currently stands, Hobby Lobby’s owners can claim a RFRA exemption because their beliefs stem from religion. An atheist or agnostic, on the other hand, cannot claim such an exemption. That, methinks, advantages the religious over the irreligious.
@DrDaveT:
Bob Dobbs is a personal hero. The Invisible Pink Unicorn doesn’t get nearly enough attention though. Did you know her pinkness transcends her invisibility?
Interesting that almost no one on this thread is engaging with the issue that Doug raises. Instead, it’s all about whether corporations are people, and Muslims turning America into a caliphate, and sex, and abortion, and sex, and sex…
It’s unfortunate that the Court waded into this kulturkampf, perhaps most so for the reputation of the Court. I think they got it wrong; especially the part about how the beliefs of the owners of a corporation somehow privilege that corporation’s evasion of generally applicable laws. There are real dangers to corporations in making less bright the line between owners of a corporate entity and the entity itself – which may be why the Chamber of Commerce didn’t wade into this one.
Having said that, the Court did rule that the government had a compelling interest that justified the contraceptive mandate, but that there were less restrictive ways of realizing that interest. I think that may have been wrong as well, but it could have been a lot worse, and the “least restrictive” language is going to make it hard to justify most other forms of discrimination. There have been suggestions that Alito’s original opinion was worse, in fact, which wouldn’t surprise me – he strikes me as the most results-oriented of the nine Justices, or perhaps the most hackish.
This whole episode reinforces my belief that American politics is about three things: race, sex, and labor.
@Robert Levine:
I recognize that I lack the subject-matter expertise to decide whether or not a law is Constitutional. It’s an interesting question, and I’m glad Doug raised it, but I don’t have an opinion worth sharing on that topic.
On the other hand, I can recognize a hack opinion when I see one. The Hobby Lobby decision is an embarrassment to the nation, not just to the Court. That tends to drown out the interesting arcana — at least until someone can leverage those arcana into overturning Teh Stupid.
@JWH:
You just have to pretend your invisible friend in the sky told you that which you came to logically. Then it will have merit.
@Robert Levine:
Seriously…even Doug admits it’s not going to change.