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“Real World Consequences”: Why The Senate’s Nuclear Option On Filibuster Reform Matters

If you care about reproductive rights, the environment or worker rights, the decision by Senate Majority Leader Harry Reid and the chamber’s Democrats – including courageous votes by this state’s senators, Mark Udall and Michael Bennet – Thursday to reform the filibuster on presidential appointments matters. A lot.

This is not just inside-the-Beltway jabberwocky. Invoking the “nuclear option” so that a simple, 51-vote majority is all that’s needed to confirm judges below the Supreme Court level and other presidential appointments will have a profound effect on the everyday lives of many Americans. Courts are missing judges thanks to an unprecedented refusal by Republicans to confirm the president’s nominees. This is purely political, not about qualifications: as Senate Republicans have bluntly admitted, all Obama nominees are bad.

And this obstruction has real world consequences both in terms of shorthanded courts and the decisions they make.

So, for example, the 10th Circuit Court of Appeals, which is located here in Denver and handles all federal court appeals for not only Colorado but also Kansas, New Mexico, Oklahoma, Utah and Wyoming, has two vacancies thanks to GOP filibustering. And as Colorado Ethics Watch has noted, 98 percent of all federal appeals are decided at the Circuit Court level, meaning that, “decisions of the 10th Circuit on important issues such as the environment and federal land policy, reproductive freedom, voting rights and money in politics, and civil rights are often final and binding for the states in the Circuit.”

In addition to refusing to act on qualified judges to the 10th Circuit, Republicans have repeatedly blocked qualified judicial nominees to the District of Columbia Circuit Court. Per Ethics Watch, “The D.C. Circuit is a traditional stepping-stone to the U.S. Supreme Court, with four of the current justices having previously sat on the D.C. Circuit. Currently, three of the D.C. Circuit’s 11 judgeships are vacant, including one that has been open since its previous occupant, John Roberts, was confirmed chief justice of the United States in 2005.”

Judicial vacancies and court rulings matter. Without fair courts that have diverse and impartial judges, we won’t have justice when it comes to women’s health and reproductive rights.

To wit, on November 1, with three judicial vacancies thanks to Republican obstruction and no Obama nominees on the bench,  the D.C. Circuit Court ruled that the Affordable Care Act’s requirement that employers provide contraception in their health insurance plans violated religious freedom. Denver’s 10th Circuit, with two Republican-blocked vacancies, decided a similar case the same way, setting up a Supreme Court challenge on whether or not women have the right to birth control regardless of their employers’ religious beliefs. This has profound and dangerous implications even beyond reproductive rights: it threatens to upend the very notion of secular labor law. What if an employer decided their religious beliefs meant they didn’t have to pay Social Security taxes, follow wage and hour guidelines, or hire workers of a different race?

So this isn’t some arcane procedural maneuver by the Senate, it’s the end result of the Republican Party refusing to respect a Democratic president. As for the argument from the right that a future Republican majority will use this move against Democrats: Republicans have broken every deal they’ve made so far to avoid the “nuclear option.” There’s little doubt that they’d change the rules anyway if they magically got the majority.

At least this way a Democratic President, Barack Obama, sees that he, his judicial nominees and appointments, and the American people get a bit more justice.

 

By: Laura Chapin, U. S. News and World Report, November 22, 2013

November 24, 2013 Posted by | Filibuster, Republicans | , , , , , , | 2 Comments

“All Corporations Go To Heaven”: Can CEO’s Impose Their Religious Convictions On The People Who Work For Them?

Remember the big dustup last summer over the contraception mandate in President Obama’s health reform initiative? It required companies with more than 50 employees to provide insurance, including for contraception, as part of their employees’ health care plans. The constitutional question was whether employers with religious objections to providing coverage for birth control could be forced to do so under the new law. The Obama administration tweaked the rules a few times to try to accommodate religious employers, first exempting some religious institutions—churches and ministries were always exempt—and then allowing companies that self-insure to use a separate insurance plan to pay and provide for the contraception. Still, religious employers objected, and lawsuits were filed, all 60 of them.

A year later, the courts have begun to weigh in, and the answer has slowly begun to emerge: maybe yes, maybe no. It all depends on whether corporations—which already enjoy significant free-speech rights—can also invoke religious freedom rights enshrined in the First Amendment.

Last Friday, the 3rd U.S. Circuit Court of Appeals upheld the contraception mandate, rejecting a challenge from a Pennsylvania-based cabinetmaker who claimed that as a Mennonite he should not be compelled to provide contraceptive coverage to his 950 employees because the mandate violates the company’s rights under the free exercise clause of the First Amendment and the Religious Freedom Restoration Act. The owner considers some of the contraception methods at issue—specifically, the morning-after and week-after pills—abortifacients.

The appeals court looked carefully to the precedent created by Citizens United—the 2010 case affording corporations free-speech rights when it came to election-related speech—to determine whether corporations also enjoy constitutionally protected religious freedom. Writing for the two judges in the majority, Judge Robert Cowen found that although there was “a long history of protecting corporations’ rights to free speech,” there was no similar history of protection for the free exercise of religion. “We simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion,” he concluded. “A holding to the contrary … would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”

Cowen also flagged the absolute novelty of the claims, noting that there was almost no case law suggesting that corporations can hold religious beliefs. “We are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights.” Finally he took pains to distinguish the corporation, Conestoga, from its legal owners. “Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. … It is Conestoga that must provide the funds to comply with the Mandate—not the Hahns.”

Judge Kent Jordan, dissenting at length in the case, said that for-profit, secular corporations can surely avail themselves of the protections of the religion clauses. “To recognize that religious convictions are a matter of individual experience cannot and does not refute the collective character of much religious belief and observance … Religious opinions and faith are in this respect akin to political opinions and passions, which are held and exercised both individually and collectively.”

The 3rd Circuit decision creates a significant split between the appeals courts, because a few short weeks earlier, the Colorado-based 10th U.S. Circuit Court of Appeals ruled in favor of Hobby Lobby Stores Inc., finding by a 5–3 margin that corporations can be persons entitled to assert religious rights. Hobby Lobby is a chain of crafts supply stores located in 41 states. The 10th Circuit upheld an injunction blocking the contraception requirement because it offended the company owners’ religious beliefs. The majority in the 3rd Circuit wrote that it “respectfully disagrees” with the 10th Circuit. A split of this nature makes Supreme Court review almost inevitable.

The Supreme Court has long held the free exercise clause of the First Amendment to prohibit governmental regulation of religious beliefs, but a long line of cases holds that not every regulation that inflects upon your religious beliefs is unconstitutional. The Religious Freedom Restoration Act bars the federal government from imposing a “substantial burden” on anyone’s “exercise of religion” unless it is “the least restrictive means of furthering [a] compelling governmental interest.” The Obama administration and the judges who have refused to grant injunctions contend that the burden here is insignificant, amounting to a few dollars borne indirectly by the employer to facilitate independent, private decisions made by their female employees. They also argue that they are promoting a compelling government interest in providing preventive health care to Americans. The employers and the judges who have enjoined the birth-control provision claim that they are being forced to choose between violating protected religious beliefs and facing crippling fines and that free or inexpensive birth control is available at community health centers and public clinics.

Basically, the constitutional question will come down to whether a for-profit, secular corporation can hold religious beliefs and convictions, or whether—as David Gans explains here —“the Court’s cases recognize a basic, common-sense difference between living, breathing, individuals—who think, possess a conscience, and a claim to human dignity—and artificial entities, which are created by the law for a specific purpose, such as to make running a business more efficient and lucrative.” Will Baude takes the opposite view, explaining that the 3rd Circuit’s reasoning—that “ ‘corporations have no consciences, no beliefs, no feelings, no thoughts, no desires’ … would all prove too much, because they are technically true of any organizational association, including … a church!” Baude likens the claim that corporations can never have religious freedom rights to the claim that corporations—including the New York Times—can never have free-speech rights.

Part of the problem, at least in the case of Hobby Lobby and Conestoga, is that neither corporation was designed to do business as religious entities. It has been clear since the nation’s founding that corporations enjoy rights in connection to the purposes for which they were created—which is why the administration already exempts religious employers whose purpose is to inculcate religious values and chiefly employ and serve people who share their religious tenets. This is about companies that don’t meet those criteria. As the dissenters at the 10th Circuit observed, the fact that some “spiritual corporations” have some religious purposes doesn’t make every corporation a religious entity. And as professor Elizabeth Sepper of Washington University puts it in a new law-review article on the subject: “Corporations, as conglomerate entities, exist indefinitely and independently of their shareholders. They carry out acts and affect individual lives, and have an identity that is larger than their constituent parts. Walmart is Walmart, even when Sam Walton resigns.”

The rest of the problem is self-evident. Where does it stop? Why does your boss’ religious freedom allow her to curtail your own? The dangers in allowing employers to exercise a religious veto over employee health care are obvious. Can an employer deny you access to psychiatric care if he opposes it on religious grounds? To AIDS medications? To gelatin-covered pills? Constitutional protections of a single employer’s individual rights of conscience and belief become a bludgeon by which he can dictate the most intimate health decisions of his workers, whose own religious rights and constitutional freedoms become immaterial.

Religious liberty arguments have been historically advanced in defense of the rights of slaveholders, segregationists, creationism, anti-gay bigotry, and gender inequality. The religious convictions in each instance were indisputably deeply felt and fundamental. That didn’t mean they trumped everything else. As we have advanced as a society—beyond slavery, segregation, homophobia, and sexism—we have worked to accommodate religious belief while pushing for fundamental fairness and equality. It’s never been a perfect accommodation. It can’t be. But religious liberty interests are rarely the only—or even the most important—interests at play. And suggestions that unwilling employers are forcing birth control on unwilling employees misstates the truth: Employees who choose to use contraception (as 99 percent of us will do at some point) shouldn’t do so at the sufferance of their bosses.

In 1982, in United States v. Lee, an Amish employer refused to pay his share of Federal Insurance Contributions Act taxes on his employees, claiming that it violated his own religious belief in individual self-sufficiency. The Supreme Court said he had to pay the taxes regardless because “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.” And in a 1990 opinion written by Justice Antonin Scalia, the court held that religious groups bear a heavy burden in overcoming “a valid and neutral law of general applicability.” None of this guarantees how the Supreme Court will decide the contraception mandate. If recent history is any predictor, it may be as fractious as the Affordable Care Act decisions themselves.

The guarantee of religious freedom enshrined in the Constitution was intended to protect fragile minorities from crushing religious burdens imposed by the wealthy and powerful. The notion that secular corporations—created by government to maximize shareholder profits and limit liability—might lay claim to their owners’ human rights of religious conscience is doubly astounding when you consider that their principal reason for being is to dissociate themselves from the frailties of human conscience in the first place.

 

By: Dahilia Lithwick, Slate, August 1, 2013

August 6, 2013 Posted by | Corporations | , , , , , , , , | Leave a comment

   

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