Posted: 06/30/2014 11:10 am EDT Updated: 2 hours ago
Ever since Citizens United, the Supreme Court's 2010 decision allowing unlimited corporate and union spending on political issues, Americans have been debating whether, as Mitt Romney said, "Corporations are people, my friend." Occupy Wall Street protestors decried the idea, late night comedians mocked it, and reform groups proposed amending the Constitution to eliminate it. Today, however, the Supreme Court endorsed corporate personhood -- holding that business firms have rights to religious freedom under federal law. Not only do corporations have rights, their rights are stronger than yours.
The question came to the Supreme Court in a challenge to regulations implementing President Obama's landmark health care law. Those regulations require employers with 50 or more employees to provide those employees with comprehensive health insurance, which must include certain forms of contraception. The contraception requirement was designed to protect the rights of women. Studies show .. http://www.guttmacher.org/pubs/social-economic-benefits.pdf .. that access to contraception has positive benefits for women's education, income, mental health, and family stability.
Protecting women's rights, according to the Court .. http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf , isn't a good enough reason for the government to force a business corporation, at least a privately held one like chain craft store Hobby Lobby, to include birth control in its insurance contrary to the business owner's wishes. At least that's what the Supreme Court, in a 5-4 decision, held in Hobby Lobby. Federal statutes guaranteeing religious freedom to "persons" apply equally to closely held business corporations, and those corporations' religious liberty is "substantially burdened" by having to provide their employees with contraception. So the rights of employees have to give way to the rights of the corporation.
The Court's decision in Hobby Lobby isn't a surprise. The Roberts Court has been largely hostile to the rights of women -- allowing greater restrictions on abortion, restricting their ability to sue for workplace discrimination, and limiting the scope of family leave laws. Meanwhile, the data show .. http://www.nytimes.com/2010/07/25/us/25roberts.html?pagewanted=all&_r=0 .. that the Roberts Court is the most business-friendly Supreme Court in nearly a century. Just as Citizens United expanded the rights of business corporations to speak about political issues -- and, in the eyes of many, enabling them to drown out the voices of We the People -- Hobby Lobby has given businesses another powerful tool to fight against regulation. Hobby Lobby's religious rights enable the firm to ignore the voices of women who wish to enjoy the health benefits from controlling reproduction.
And women may not be the only victims. What religious rights will business corporations seek next? The Court said that its decision wouldn't necessarily mean that closely-held businesses could obtain exemptions from health care regulations mandating insurance coverage for vaccinations and blood transfusions. Yet the Court did grant those corporations today a right to make such claims in court. If ensuring women's control over reproduction -- a constitutional right -- isn't a strong enough reason to limit the religious rights of Hobby Lobby, it's not clear why these other laws won't fall too.
LGBT people may be next. Remember a few months ago when Arizona almost adopted a controversial law that would have given business corporations a broad right to use religion to make claims for exemptions from the law? That proposed law was rightly seen as an attack on LGBT rights, as supporters insisted that business owners who object to same-sex marriage shouldn't be forced to bake cakes, take pictures, or arrange the flowers at such ceremonies. After Hobby Lobby, now all business corporations have a right under federal law to claim religious-based exemptions to all sorts of laws -- including laws prohibiting discrimination on the basis of sexual orientation.
[ so will the pendulum swing back to race one day, was the thought there .. then, oh... ]
To its credit, the Court's majority recognized the trouble created by the ruling and suggested that firms would not be entitled to discriminate on the basis of race. "The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race," the majority wrote. Yet the Court's omission of LGBT discrimination is worrisome. The justices must have understood that the current conflict between religion and anti-discrimination law involves LGBT people, not racial minorities. No corporation is seeking to use religion as an excuse to discriminate against African-Americans, while several are seeking to discriminate against LGBT people. About that, the majority says nothing.
If the Court's ruling is read to permit challenges to laws barring discrimination against LGBT people, Hobby Lobby will be the Arizona law on steroids. It wouldn't apply in one state but across the nation.
So while a business corporation can't go to church, fast on Yom Kippur, or travel to Mecca for Ramadan, it can still go to court and, on the basis of religious freedom, demand to be exempted from the law that applies to everyone else. Today, women are the victim. Tomorrow, it could be LGBT people. Indeed, after Hobby Lobby, every person is at risk. Everyone, that is, except the corporate person, my friend.
Follow Adam Winkler on Twitter: www.twitter.com/adamwinkler
Science Denial May Prevail In Hobby Lobby, Conestoga Cases .. one bit of post ..
"In 1990, Scalia wrote the majority opinion in Employment Division v. Smith .. http://www.law.cornell.edu/supremecourt/text/494/872, concluding that the First Amendment "does not require" the government to grant "religious exemptions" from generally applicable laws or civic obligations. The case was brought by two men in Oregon who sued the state for denying them unemployment benefits after they were fired from their jobs for ingesting peyote, which they said they did because of their Native American religious beliefs." http://investorshub.advfn.com/boards/read_msg.aspx?message_id=99458669
Another Contraception Dispute Looms For The Supreme Court
The Supreme Court building following the court's decision on the Hobby Lobby case in Washington, Monday, June 30, 2014. The Supreme Court says corporations can hold religious objections that allow them to opt out of the new health law requirement that they cover contraceptives for women. (AP Photo/Pablo Martinez Monsivais)
By MARK SHERMAN and RACHEL ZOLL Posted: 07/06/2014 8:55 am EDT Updated: 1 hour ago
WASHINGTON (AP) — How much distance from an immoral act is enough?
That's the difficult question behind the next legal dispute over religion, birth control and the health law that is likely to be resolved by the Supreme Court.
The issue in more than four dozen lawsuits from faith-affiliated charities, colleges and hospitals that oppose some or all contraception as immoral is how far the Obama administration must go to accommodate them.
The justices on June 30 relieved businesses with religious objections of their obligation to pay for women's contraceptives among a range of preventive services the new law calls for in their health plans.
Religious-oriented nonprofit groups already could opt out of covering the contraceptives. But the organizations say the accommodation provided by the administration does not go far enough because, though they are not on the hook financially, they remain complicit in the provision of government-approved contraceptives to women covered by their plans.
"Anything that forces unwilling religious believers to be part of the system is not going to pass the test," said Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, which represents many of the faith-affiliated nonprofits. Hobby Lobby Inc., winner of its Supreme Court case last month, also is a Becket Fund client.
The high court will be asked to take on the issue in its term that begins in October. A challenge from the University of Notre Dame in South Bend, Indiana, probably will be the first case to reach the court.
The Obama administration argues that the accommodation creates a generous moral and financial buffer between religious objectors and funding birth control. The nonprofit groups just have to raise their hands and say that paying for any or all of the 20 devices and methods approved by government regulators would violate their religious beliefs.
To do so, they must fill out a government document known as Form 700 that enables their insurers or third-party administrators to take on the responsibility of paying for the birth control. The employer does not have to arrange the coverage or pay for it. Insurers get reimbursed by the government through credits against fees owed under other parts of the health law.
Houses of worship and other religious institutions whose primary purpose is to spread the faith are exempt from the requirement to offer birth control.
The objections by religious nonprofits are rooted in teachings against facilitating sin.
Roman Catholic bishops and other religious plaintiffs argue that filling out the government form that registers opposition to contraceptives, then sending the document to the insurer or third-party administrator, is akin to signing a permission slip to engage in evil.
In the Hobby Lobby case, the justices rejected the government argument that there was no violation of conscience because the link between birth control coverage and the outcome the employer considers morally wrong was slight.
Just hours after the Hobby Lobby decision, the 11th U.S. Circuit Court of Appeals in Atlanta granted a temporary reprieve to the Alabama-based Eternal Word Television Network. Judge William H. Pryor Jr. said in a separate opinion in that case that the administration "turns a blind eye to the undisputed evidence that delivering Form 700 would violate the Network's religious beliefs."
But the Supreme Court could draw a distinction between subsidizing birth control and signing a document to deputize a third-party to do so, said Robin Fretwell Wilson, a family law specialist at the University of Illinois College of Law.
"Think about how thinned down that objection is," Fretwell Wilson said. "The court might say that is a bridge too far."
Judge Karen Nelson Moore of the 6th U.S. Circuit Court of Appeals in Cincinnati said the document is a reasonable way for objecting organizations to inform the insurer, but that the obligation to cover contraception is in the health law, not the form.
"Self-certification allows the eligible organization to tell the insurance issuer and third-party administrator, 'We're excused from the new federal obligation relating to contraception,' and in turn, the government tells those insurance companies, 'But you're not,'" the judge wrote.
People on both sides of this argument are looking to the Hobby Lobby case for clues about how the justices might come out in this next round.
In a Supreme Court filing, the Justice Department said the outcome strongly suggested that the court would rule in its favor when considering the nonprofits' challenge.
"The decision in Hobby Lobby rested on the premise that these accommodations 'achieve all of the Government's aims' underlying the preventive-health services coverage requirement 'while providing greater respect for religious liberty,'" the Justice Department wrote, quoting from Justice Samuel Alito's majority opinion. The legal filing was in opposition to an emergency plea from Wheaton College in Wheaton, Illinois, to avoid having to fill out Form 700. Wheaton is one of only a few nonprofits not to have won temporary relief in its court fight.
Rienzi, who also represents Wheaton, wrote in reply that the government is wrong to assume that the Hobby Lobby decision "blessed the accommodation." He noted that Alito specifically said the court was not deciding whether the administration's workaround for nonprofits adequately addressed their concerns.
On Thursday, the court, with three justices dissenting, allowed Wheaton to avoid using the form while its case remains on appeal. Instead, the college can send written notice of its objections directly to the Health and Human Services Department rather than the insurer or the third-party administrator. At the same time, the government can take steps to ensure that women covered by Wheaton's health plan can get emergency contraception the college won't pay for.
Several legal experts said that perhaps a simple revision to the government document at the center of the dispute could resolve matters.
"I think the question will come down to does the government really need them to tell the insurance companies or can you reword the form," said Marc Stern, a religious liberty specialist and general counsel for the American Jewish Committee. The faith-affiliated charities "might win a redrafting of the form. I don't think they can win an argument that says we can do absolutely nothing," Stern said.
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