“Slicked With Oil And Littered With Banana Peels”: A ‘Narrow’ Decision From The Narrow-Minded
Relax. This is not a slippery slope.
So Justices Samuel Alito writing for the majority and Anthony Kennedy writing in concurrence, take pains to assure us in the wake of the Supreme Court’s latest disastrous decision. The same august tribunal that gutted the Voting Rights Act and opened the doors for unlimited money from unknown sources to flood the political arena now strikes its latest blow against reason and individual rights.
By the 5-4 margin that has become an all-too-familiar hallmark of a sharply divided court in sharply divided times, justices ruled Monday that “closely held” corporations (i.e., those more than half owned by five people or fewer) may refuse, out of “sincerely held” religious beliefs, to provide certain contraceptive options to female employees as part of their health-care package. The lead plaintiff was Hobby Lobby, a chain of arts and crafts stores based in Oklahoma and owned by the Green family, whose Christian faith compels them to pay employees well above minimum wage, play religious music in their stores, close on Sundays and donate a portion of their profits to charity.
Unfortunately for their employees’ reproductive options, that faith also compels them to object to four contraceptive measures (two IUDs, two “morning-after” pills) that they equate with abortion. Most gynecologists will tell you that’s a false equation, but Alito said that wasn’t the point.
Rather, the point was whether Hobby Lobby was sincere in its mistaken belief. That it was, the court decided, meant that the Affordable Care Act provision requiring Hobby Lobby to provide the disputed contraceptive measures violated the 1993 Religious Freedom Restoration Act, which prevents government from doing anything that “burdens” the free exercise of religion.
Apparently we now have greater solicitude for the feelings of corporate “persons” than for the health of actual persons. This ruling places women’s reproductive options at the discretion of their employers, which is awful enough. But it has troubling implications beyond that.
Not to worry, writes Alito, this ruling is “very specific.” Not to fret, concurs Kennedy, this is not a ruling of “breadth and sweep.” Let no one be mollified by these assurances.
Under the court’s logic, after all, it’s difficult to see why a corporation owned by a family of devout Jehovah’s Witnesses can’t deny blood transfusions to its workers. Or why one owned by conservative Muslims can’t deny employment to women. Or why one owned by evangelical Christians can’t deny service to gay men and lesbians.
This is not just hypothetical. In the last decade, we’ve seen Christian pharmacists claim faith as a reason for refusing to fill — and in some cases, confiscating — contraceptive prescriptions. We’ve seen Muslim cabbies use the same “logic” in declining to serve passengers carrying alcohol.
What is the difference between that outrageous behavior and Hobby Lobby’s? By what reasoning is the one protected, but the others are not? It is telling that Alito and Kennedy are virtually silent on this question.
Apparently, it’s a narrow ruling because they say it’s a narrow ruling. Apparently, we are simply to trust them on that. But even if you could take them at their word, this would be a frightening decision, the imposition of religion masquerading as freedom of religion. And the thing is: You can’t take them at their word.
So here we stand: a corporate “person” celebrating a dubious victory as millions of actual persons wonder if they’ll have birth control tomorrow. Or be denied a prescription, a job, a wedding cake.
Not a slippery slope? They’re right. This is a San Francisco sidewalk coated with ice, slicked with oil and littered with banana peels. God help us.
And look out below.
By: Leonard Pitts, Columnist forThe Miami Herald; The National Memo, July 2, 2014
“The Majority Has Ventured Into A Minefield”: Here Are The Highlights Of Justice Ginsburg’s Fiery Hobby Lobby Dissent
On Monday morning, the Supreme Court finally released its much-anticipated decision on the Hobby Lobby case, a decision that lived up to expectations by being split along ideological lines (the court’s five conservatives overruling its four liberals) and severely weakening Obamacare’s birth control mandate.
Also living up to expectations? Liberal Justice Ruth Bader Ginsburg’s blistering dissent, which excoriated the court’s majority for its ruling, describing it as a “radical” decision “of startling breadth” that would have chaotic and major unintended consequences. You can read her dissent in full here (it starts at page 60) but we’ve also compiled some of its best, key parts.
Ginsburg opens with a bang, immediately describing the decision as one that will have sweeping consequences:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.
She frames the decision as one that denies women access to healthcare, rather than as one that upholds religious liberty:
The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.
In a similar vein, she rejects that the birth control mandate should be seen as an act of government coercion, describing it instead as one that provides women with the ability to make their own choice:
Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.
She affirms her belief that religious organizations and for-profit corporations serve fundamentally different purposes and have fundamentally different rights (and throws some shade at the majority in the process):
Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. … The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.
She claims that the majority has actually undermined the very principle, religious freedom, it claimed in its ruling to have upheld:
Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.
She writes that the majority has pushed the Religious Freedom Restoration Act past its original intent:
In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
By: Elias Isquith, Salon, June 30, 2014
“Demanding The Right To Oppress”: Is Forced Religious Belief Coming To An Employer Near You?
The Supreme Court just can’t seem to quit the Affordable Care Act.
On Tuesday, it announced it would hear challenges to the law’s “contraception mandate,” which requires employers that provide health insurance to include contraceptives in their plans, including birth control pills and emergency contraception. At stake is whether for-profit companies can be exempted from the mandate because of their owner’s religious beliefs.
This controversy centers on a lawsuit by Hobby Lobby, an arts & crafts chain whose owners—David Green and his family—are devout Christians who believe life begins at conception and that using certain kinds of birth control violates their religious beliefs.
Obamacare contains an exemption for churches and other religious nonprofits, but the Greens want it extended to for-profit companies like their own, who are otherwise required to include FDA-approved contraceptives in their health insurance plans. They claim that the requirement would “substantially burden” their ability to practice their religion.
This gets to the core of the lawsuit. Hobby Lobby isn’t just fighting for an exemption from the contraception mandate, it’s arguing that, as a business, it shares in its owners religious beliefs and has its rights as a corporate person protected under the Religious Freedom Restoration Act, a 1993 law mandating that strict scrutiny be used when determining if the free exercise clause of the First Amendment has been violated. By requiring companies to cover women’s contraception, Hobby Lobby argues, the federal government is violating their religious rights. In short, the Greens are asking the court to classify for-profit corporations as having religious consciences.
It should be said that the Greens aren’t Catholics; they’re evangelical Christians who don’t share Catholicism’s doctrinal opposition to birth control. Condoms and diaphragms aren’t an issue. Instead, the Greens—who see fertilized eggs as persons—object to Plan B and other forms of emergency contraception, which they believe prevent embryo implantation in a woman’s womb, and are tantamount to abortion.
But medical science is clear: emergency contraception is not an abortifacient. As explained in an amicus brief by Physicians for Reproductive Health, pregnancy begins when a fertilized egg attaches itself to the uterine lining, a process that occurs within five to nine days of sexual intercourse, if the egg is fertilized. “Emergency contraception,” notes the organization, “refers to a drug or device that is used after intercourse, but before pregnancy, to prevent pregnancy from occurring.” Abortifacients, by contrast, are used to terminate an existing pregnancy.
According to the brief, the two FDA-approved forms of emergency contraception—Plan B and “ella”—work by preventing, disrupting, or prohibiting ovulation, which stops fertilization altogether. In the doses approved for contraceptive use, neither terminates a pregnancy.
This is important. For Catholic groups, who oppose all contraception regardless of circumstance, the science is irrelevant. The mechanism of birth control is less important than the theological commitment to all pregnancies. But evangelicals—like the Greens—are in a different boat. Their objection depends on the science of pregnancy. If what’s true—emergency contraception doesn’t cause abortion—contradicts their beliefs, then what basis do they have for the objection? It’s fine if the Greens oppose abortion out of their sincere religious convictions—they can believe whatever they want—but that doesn’t give them license to redefine abortion (or contraception) to fit those beliefs.
Indeed, allowing them the privilege opens the door to a whole host of actions that would burden the liberty—religious or otherwise—of employees or customers. In a world where corporations have First Amendment protections for their religious beliefs, can they win exemptions for any law they disagree with? If Congress passes the Employee Non-Discrimination Act, can Hobby Lobby decline to follow its dictates—and say, refuse to hire to gays and lesbians—out of its sincere religious beliefs? Could it refuse to hire blacks out of a belief that they are cursed by God?
This is all on top of the implications for employees. If you work at Hobby Lobby, could the company require you to attend Bible study? What if your employer is a Christian Scientist? Could they refuse to provide health insurance at all, citing their religious beliefs? These become real scenarios if the Court decides that belief trumps all other considerations, including actual fact.
Over the last few years, corporations have accumulated more and more power, under the guise of “freedom.” At the moment, employers can fire employees for their political views, require employees to attend political rallies, and even volunteer for candidates they disagree with. Hobby Lobby is asking the Supreme Court to extend this even further, to forcing employees to choose health insurance that matches the religious preferences of their employers.
All of this raises important questions. Is this about securing religious liberty, or expanding it for a particular group? And if it’s the latter, is Hobby Lobby fighting for “liberty,” or is it demanding the right to oppress?
By: Jamelle Bouie, The Daily Beast, November 27, 2013
“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
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