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Sebelius v. Hobby Lobby Stores, Part III: Justiciability of Individual Claims [Updated]

A description of the Ordinary Court project may be read here. Part I of the opinion may be read here. Part II of the opinion may be read here. [NB: The original version of this post neglected to include part III.C]

Thompson, J. delivered the opinion of the Ordinary Court as to this Part III.

A.

Regardless of whether a corporate entity such as Hobby Lobby possesses a conscience capable of exercising religion, it is clear that individuals such as the Greens do. Nonetheless, the Government and various amici curiae assert that the responsibility for compliance with the contraception mandate resides solely with Hobby Lobby and that, as such, any burden associated with that compliance is experienced solely by Hobby Lobby. Because the burden is solely on the corporate entity Hobby Lobby, claims the Government, there can be no burden on the Greens individually, regardless of their personal religious beliefs.

I disagree. Although it is true that under our prudential standing doctrine, a business owner may not ordinarily assert an injury based on harm directed at her corporation, this presents the rare case in which the injury can in fact be reasonably said to be experienced directly by the business owner.

B.

In most circumstances, the threshold for a plaintiff to allege standing under Article III of the Constitution is quite low: they must only assert that they have or will imminently suffer an injury in fact that is only “fairly traceable to the challenged [regulation],” and that the injury will “likely” be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Additionally, this Court has long recognized that shareholders who suffer an injury as a result of an action against their business have Article III standing to challenge a law or regulation that causes that injury. Franchise Tax Bd. v. Alcan Alum., 493 U.S. 331, 336 (1990).

Here, it is indisputable that the Greens individually will suffer such an injury if Hobby Lobby is required to comply with the contraception mandate. If the business is fined for non-compliance, the value of their shares in the company will decrease, and if it complies with the regulation, they will be required, in their capacity as managers for Hobby Lobby, to engage in conduct that violates their religious obligation – which the Government does not dispute – to refrain from conduct that would assist others in using certain types of contraceptives.

This does not end the inquiry, though, as it has long been the case that other limits exist on who may assert claims in federal courts beyond Article III’s minimum requirements. Specifically, this includes the so-called “shareholder standing rule,” which generally prohibits shareholders from asserting claims based on conduct that harms the corporation. Alcan Alum., 493 U.S. at 336. Thus it would seem at first glance that the Greens, as shareholders of Hobby Lobby, may not assert standing based on a regulation such as the contraception mandate that is aimed squarely at their corporation.

A first glance would be insufficient, however, as we have also long recognized an important exception to this rule such that “a shareholder with a direct, personal interest in a cause of action may bring suit even if the corporation’s rights are also implicated.” Hobby Lobby Stores v. Sebelius, 723 F. 3d 1114 (10th Cir. 2013)(Matheson, J., dissenting in part and concurring in part)(quoting Alcan, 493 U.S. at 336). Under this rule, a shareholder may maintain a suit if she can demonstrate an injury independent of the alleged injury to the corporation that is experienced directly by the shareholder.

Though it is not sufficient for a shareholder to obtain this “direct, personal interest” simply by asserting that the value of their shares in the corporation will decline or that they will suffer other equally indirect damage, I believe other factors present in this case demonstrate that the injury is in fact directly and personally experienced by the Greens.

Of greatest importance in this regard is the fundamental significance of the right the Greens seek to vindicate in this suit – namely, their freedom of religion. Freedom of religion is a core liberal value under our Constitution that “look[s] primarily to the preservation of personal liberty, rather than towards the fulfillment of collective goals,” and the Government may not so casually “put an individual to a choice between his business and his religion.” Braunfeld v. Brown, 366 U.S. 599 (1961)(Brennan, J., dissenting). To adopt a rule, such as that advocated by the Government and its amici, that an individual owner may never assert even a Constitutional injury due to actions the government requires he take on behalf of his business would have the potential to do great harm to individual liberty and, in the case of religious freedom, would quite literally “put an individual to a choice between his business and his religion.”

That does not, of course, mean that an individual shareholder may simply disregard the corporate form in order to assert a claim just by asserting that an important right is implicated. Of great significance in this case, however, is that all of the owners have the same beliefs, the sincerity of which is undisputed, they are all actively involved in the management of the business, and they represent the entirety of Hobby Lobby’s active ownership. To avoid directly acting in contravention of their religious beliefs, the owners would need to divest themselves of at least some control of the business and place it in the hands of a third party. It is not necessary to address whether there must be a uniform burden on all of a corporation’s owner in order for one or more of those owners to sue the government based on an action against their business; it is enough for now to acknowledge that in this case, the business is closely held, all of the owners are actively involved with managing the business and all of the owners would suffer the same injury.

Also of great significance in this case is the great degree to which the Greens have affirmatively used their businesses as a vehicle for expressing their religious beliefs. Their faith is expressly referenced in their businesses’ statements of purpose, their businesses do not open on Sundays, they sell an array of Christian-themed products, and they refuse to sell products that they believe promote activities that would violate their faith. The promotion of those religious beliefs within the context of the businesses is the Greens’ decision, and is a set of acts by which someone is surely engaging in the “exercise of religion.” If that “someone” cannot be the businesses, then it must by default be the Greens themselves.

Finally, it cannot pass without note that the Greens’ businesses are registered as “S” corporations with the federal government, and specifically with the Internal Revenue Service. In registering as an “S” corporation, the profits of the businesses are attributed directly by the federal government to the Greens individually. Additionally, should the Greens’ businesses not comply with the mandate, the resulting penalty would be charged as a tax by the IRS. Cf. NFIB v. Sebelius, ___ U.S. ___ (2012)(upholding constitutionality of individual mandate under the ACA as a tax). It is unclear whether the Government would pursue the Greens personally for payment of any non-compliance tax under the mandate, but the potential certainly exists enough to permit the Greens to claim an independent injury. Regardless, even if the Government cannot pursue the Greens directly for payment of the mandate tax penalty, I do not see how the Government may reasonably deny standing to shareholders of an “S” corporation to challenge a penalty enforced by a tax that the Government itself will treat as a reduction of the shareholders’ personal income. Again, this is not to say that only owners of “S” corporations may assert a “direct, personal interest” in cases against the government, nor that they may do so only where the government itself treats the complained-of action as an action directly against the owner. It is, however, difficult to foresee an instance in which the government can treat a business owner as if she is directly injured by a policy yet deny her individual standing to challenge that policy.

C.

                The dissent asserts a parade of horribles that it believes will follow from our decision granting the Greens individual standing in this matter.  We find the dissent’s fears gravely misplaced.  As noted, supra, this Court has long recognized that a shareholder with a direct, personal interest in litigation may under some circumstances bring suit even if her corporation’s rights are also implicated thereby.  Our decision today merely affirms that this doctrine applies with no less force when the shareholder’s rights implicated are in the nature of free exercise rights.

In particular, the dissent frets about the effects of our decision on anti-discrimination laws.  These fears are severely misguided in our view – a finding that individuals have standing to assert violations of their religious freedoms is hardly a finding that individuals will be successful in prosecuting such claims.  Although RFRA permits application of burdens on religious freedom only insofar as applying a burden  on a particular plaintiff “is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest,” we note that this Court’s precedent prior to Employment Division v. Smith was readily willing to find the existence of such an interest, as well as that the means of furthering that interest were indeed the least restrictive such means.  That precedent remains fully intact.  Although we find below that the government in this case has thus far failed to establish its burden, this is in no small part because of the fact that the government here has readily granted exemptions to the law in question to others – in effect admitting that no compelling interest exists with regards to those entities – yet has made no attempt whatsoever to articulate a reason for failing to extend those exemptions to this particular plaintiff.  As to discrimination laws, which are not at issue herein, we further remind the dissent that this Court has consistently held that the government possesses a compelling interest in implementing and enforcing anti-discrimination laws that warrants limitations on religious and associational freedoms.  See, e.g., Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984); Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983).

The far greater concern, we believe, is the consequence of adopting a blanket rule prohibiting the owners of corporate entities – and especially closely held corporate entities – from even asserting a violation of their religious freedoms, regardless of whether the government intentionally seeks to target their religion.  This is the rule the dissent would propose, and it is a rule that the Constitution, much less RFRA, cannot tolerate.  Under such a rule, for instance, a local ordinance motivated by animus towards Jews or Muslims prohibiting businesses from selling meat that has not been stunned would not only survive any challenges – it would be unchallengeable entirely.  Similarly, an ordinance targeting a disfavored religious group by requiring businesses be open on that religious group’s holy day would be wholly unchallengeable.  We find it unfathomable that either RFRA or the First Amendment could be so limited as to grant governments license to so directly and brazenly target disfavored religious groups without any possibility of judicial review.

Thompson, J., was joined in this part III of the opinion of the Ordinary Court by Kowal, J. and Dave, J. Kowal, J. is further of the opinion that his dissent from part II applies with equal force as to this part III.

 

Likko, C.J., dissenting:

Part II of this Court’s opinion does not dispose of the entirety of the case before the Court. The Greens unquestionably do possess sincere religious beliefs, beliefs which equate use of certain drugs described by the Contraception Mandate with murder and by extension, dispensation of those drugs as facilitating murder. They easily meet the first of their two burdens under the RFRA. Their burden, therefore, is to demonstrate that the Contraception Mandate imposes a substantial burden upon their religious beliefs. In order to consider this, an understanding of the capacity in which the Greens act is helpful.

 

A

In the case of a for-profit corporation (called a “general corporation” under Oklahoma law), there are three classes of persons stand with direct and intimate relationships to the corporate entity. Shareholders are those persons who own fractional interests of the entity.

Shareholders, in turn, hold three principal rights appurtenant to their ownership of stock: the ability to receive a fractional share of the distribution of profits as distributed by the directors of the corporation proportional to the fractional interest of shares owned, the ability to vote pursuant to the legally-valid bylaws of the corporation for directors again in proportion with the fractional amount of stock owned, and the ability to receive proportional, fractional residual distribution of money upon the dissolution of the corporation and liquidation of its assets. Either natural persons or other business entities may be shareholders.

A corporation’s directors, once elected by the shareholders, discharge several duties. They exercise oversight and policy-making control over the affairs of the corporation, and have the power to draft and impose policies that bind the corporation and its agents. Some of these policies are called “bylaws” when they relate to the control and governance of the corporation. They vote on distributions of profits to the shareholders, or in some cases on issuance of offerings of new stock. And, they appoint officers. Directors of a corporation are invariably natural persons rather than other entities, and they are fiduciaries of the corporation.

Officers of a corporation are its agents, and often its employees. They are charged with any of a number of duties, at the discretion of the directors, and are empowered to bind the corporation to contracts. Officers of a corporation are invariably natural persons and not entities, and they too are fiduciaries of the corporation. When we refer to, for instance, David Green as the President of Hobby Lobby, we refer to him acting in his capacity as an officer of that corporation.

There is no formal legal bar to a single person occupying more than one, or all, of these roles simultaneously. In closely-held corporations, individuals often do in fact hold substantial amounts of stock, serve as officers, and serve as directors, all at the same time. Particularly when those people conceived of, incorporated, and built a corporation as their life’s work (as seems to be the case with the Greens today) it is often difficult for those people to remember that the corporations have a separate legal identity from themselves, and they see those corporations as extensions of themselves.

But to do so fundamentally misstates the very reason a corporation exists: it creates a different legal entity through which business is done. Individual stockholders do not personally transact with others, so they do not incur liabilities to them. This is true even in a situation where a person is simultaneously a shareholder, officer, and director of a corporation – that person does not personally do business with the third parties. The corporation does, under the control of that officer. “The distinction between corporate and individual enterprise is one of the deepest in our constitutional law, as it is for the shapers of public policy.” Shapiro v. U.S., 335 U.S. 1, 67 (1948).

More simply put: A corporation is not its owners.[1] A corporation is not its officers. A corporation is not its directors. It is a separate legal entity.

 

B

The fundamental problem with the Greens’ claims today is that they are not the ones who are asked by the Contraception Mandate to dispense the disputed drugs. Only Hobby Lobby and Mardel are asked to do this. The Greens are not obliged to do anything – and they are not Hobby Lobby. Corporations, even closely-held corporations such as Hobby Lobby, have long been held to have identities separate from individuals who own and control them, and their owners may be effectively compelled to act in the capacity of an agent of the corporation sometimes directly contrary to their wishes and desires as individuals.

For instance, in Braswell v. U.S., 487 U.S. 99, 105 (1988), the president, sole director, and sole shareholder of a corporation could not invoke a Fifth Amendment right against self-incrimination with respect to the corporation’s financial records after being served with a subpoena, despite the fact that as an individual, he had already invoked that right. Thus, when acting in his capacity as an officer of the corporation he was required to produce records that, had he been acting in his capacity as an individual, he could have withheld under his claim of privilege.

So too in this case. The Greens do not act as individuals when they act in their capacities as officers and directors of Hobby Lobby. They act on behalf of, for, and as fiduciaries of, Hobby Lobby. Therefore, they cannot invoke their rights as individuals – because they, as individuals, are not participating in the transaction at all. As individuals, they are not asked to dispense the disputed drugs. As individuals, they are not asked to spend any of their money on the disputed drugs. As individuals, they are not asked to make those drugs available to their employees – because the employees in question are not their employees individually. It is “the President of Hobby Lobby,” not “David Green,” who is tasked by operation of law with complying with the Contraception Mandate.

It also bears noting that should Hobby Lobby comply with the Contraception Mandate, an insurance company (yet to be identified) will actually purchase the drugs, and those drugs will presumably be dispensed by medical professionals such as doctors and pharmacists. Thus, the Greens are at least two steps removed from direct commerce with the drugs that their individual consciences forbids them from handling: first by way of Hobby Lobby, a separate corporate entity with an identity separate from themselves, and second by way of Hobby Lobby’s insurance provider, itself a separate corporate entity with an identity separate from Hobby Lobby and certainly separate from the Greens.

 

C

Moreover, the Oklahoma state law of fiduciary duty requires that the Greens, when discharging their duties as corporate officers, not elevate their own interests and preferences above that of the corporations that they administer. In Oklahoma as in all the States, fiduciaries must elevate the financial interests of their wards above even their own.

When faced with a choice between compliance with the law and the inevitability of drawing a crippling liability upon her ward, a fiduciary must set aside her own preferences and desires, and acts in the best interests of her ward. The minimum that a fiduciary can do in this case is to get out of the way of the corporation’s compliance with the law. A fiduciary who cannot do this for whatever reason, including a personal religious objection, is not relieved of her duty to act in the best interests of her ward.

It is clearly in the financial interests of Hobby Lobby to comply with the law, and contrary to its interests to defy the law. This is particularly true if the fines threatened for violation of the Contraception Mandate are indeed as draconian as Respondents have suggested. The Greens, in their capacity as fiduciaries of the corporation, flirt with breach of fiduciary duty by elevating their personal religious beliefs above the interest of the corporation to conduct its business in compliance with the law. It would appear that only the fact that the Greens are also, in their capacity as stockholders, the ones to enforce fiduciary obligations upon themselves in their capacity as officers, would protect the Greens from running afoul of this law as well, provided that a reasonable means is available (as it is here) to bring the company in compliance with the law.

 

D

Three significant risks are raised by the majority’s holding today.

First, the distinction between a corporation and its owners is blurred. There is an increased risk of abuse of the corporate privilege, and indeed I would find that invocation of the limitation of liability and other benefits of separate legal personhood by Hobby Lobby to protect its shareholders in the future would be estopped given that the shareholders today successfully claim an identity of interest between the corporation and themselves. If individuals are able to impute their personal beliefs to the corporations they control and thus exempt the corporation from laws of general application, yet still invoke the form of a corporation as a shield against liability, we open the door wide to abuse of the corporate privilege.

Second, nothing will stop a future corporation, guided by the invoked sincere religious beliefs of its owners, from asking for exemptions from other laws of general application on religious grounds. Religious beliefs were once invoked to justify slavery and all manner of racial discrimination; text from the Bible can be read in such a fashion as to suggest that those who bear dark skin are the accursed sons of Ham and that the chosen people of God may have naught to do with them. That such a belief is out of step with mainstream Christian thought today is quite irrelevant: any one individual might invoke this interpretation of the Bible as a defense against the application of general ban on racial discrimination in employment and public accommodations found in our civil rights legislation.

I can find no reason why this could not happen, consistent with the reasoning of the majority as to this point. The majority’s suggestion that enforcement of anti-discrimination laws constitutes a compelling governmental interest does not close the circle: a law with the sweeping scope of the Civil Rights Act cannot be deemed “narrowly-tailored” so as to protect religious freedom and so even if the compelling nature of the government’s interest is conceded, it still cannot meet the final prong of the RFRA test. The majority thus converts RFRA into an exception powerful enough to swallow this or any other rule.

Nor can this slope regain traction even after the Civil Rights Acts are left with such a gaping wound. Nothing (nothing principled, anyway) will prevent invocation of RFRA against other laws of general application. Tax collection will become varied based on the religion of the taxpayer: Quakers, for instance, could object to the use of their money to pay for acts of violence and aggression and therefore might seek to exempt themselves from paying a percentage of the taxes they owe proportional to the amount of money spent on military defense, the FBI and other armed agents of the Government, and subsidies and assistance to local police. Jehovah’s Witnesses will be able to opt in or out of public health subsidies based on their objection to blood transfusions paid for in part or in whole by public funds. Members of other Christian sects who object to contraceptives that are not even colorably abortifacients will seek more expansive waivers than those which the Greens will imminently pursue in the District Court.

The majority raises a concern that laws could be in fact aimed at specific disfavored religions and cloaked under the law of general applicability, hypothesizing a mandatory Saturday-open law intruding upon the preferences of a Jewish-owed or Muslim-owned business. But courts are well able to make findings of fact that a putatively neutral law is not such, and in fact specifically targets a disfavored religion, e.g., Church of Lukumi Babalu Aye v. City of Hialeah, 503 U.S. 520 (1993) No such finding has been made, nor credibly suggested, in this case; the Contraception Mandate was very obviously not drafted with an intent to drive so-called “Christian businesses” from the marketplace for labor, but rather with an intent to advance health and welfare.

Minorities have rights that are beyond the scope of the majority to regulate, but at some point in a democratic system of government, the majority rule must apply.

All of this is made that much more pernicious because religious beliefs are entirely internal to an individual. Courts typically do not challenge religious beliefs once invoked (and in the typical case, this is appropriate). Religious beliefs are subjective, may be individualized, and are not susceptible of proof or disproof.

While we need not doubt the sincerity and good faith of the Greens, imputing and disseminating functionally unproven and unprovable assertions about the ultimately unknowable to unhuman entities on the basis of an incomplete and widely-misunderstood legal fiction is an invitation for clever and cynical litigants to dodge application of the laws at their convenience. People of all manner of beliefs will be able to object to all manner of things that they dislike the government doing or requiring them to do, and some of them will not have the good faith of the Greens but instead will cynically cloak their personal preferences in the noble mantle of religious faith, and the government will be powerless to enforce the law against them.

This, finally, leads us to the final problem – the endgame of the religious opt-out seemingly available to anyone, any time, against any law. In order to have a meaningful government enforcing laws in a meaningful fashion, individuals will need to declare their religious beliefs in advance so as to allow governmental officials to know whether or not they can enforce a particular law against them. As matters stand now, one’s beliefs and faith (or lack thereof) are a personal, private matter, which no citizen may be compelled to reveal by the government. But how else, other than through a sacrifice of privacy, will a governmental official know in advance that a law does not apply?

The opinion of Kowal, J. admirably attests to the power and importance of individual conscience, and is appropriately considered when contemplating the magnitude of the importance of the Religion Clauses. He is right to urge us to be as deferential as we can to religious liberties.

Yet in a system of ordered liberty, in a constitutional democracy, there is necessarily a limit to those individual rights, as there are necessarily limits to all individual rights. Speech is free, yet defamation is not protected and speaking in public may be regulated reasonably as to time, place and manner. Freedom from warrantless searches by police have exceptions when exigent circumstances or public safety issues are in play. Litigants have rights to juries, but not as to all claims and states may condition the invocation of the right to jury trial based on a variety of procedural issues. Most people have the rights to keep and bear firearms, and to vote, but those convicted of felonies may find that those rights have been rendered forfeit.

The rights embodied in the Religion Clauses are no different. And when those rights are not even appropriately implicated, permitting them to be selectively invoked as a shield against application of the laws marks an erosion of the ability of the political branches of government to discharge their duties at all. We are a society governed by the rule of law, but when laws do not apply generally and anyone can claim a religious belief to avoid whatever law they find inconvenient, the concept of “law” itself is shaken as by an earthquake.

The earthquake triggered by the majority’s ruling today is mild, and the structure of the law will require but a small patch to remedy should Congress or a future decision of this Court wisely address the issue. How many more such earthquakes will we endure in the future, though, before the foundations of a society governed by the rule of law begin to crack?

 

E

Nothing in my opinion would, and nothing in the Contraception Mandate does, forbid any of the Greens from personally abstaining from participating in Hobby Lobby’ compliance with the Contraception Mandate. They may delegate compliance with the Contraception Mandate to someone else who lacks their personal religious beliefs. Indeed, the easiest solution to the purported conundrum in which the Greens claim to find themselves is to cause Hobby Lobby to hire a third-party agent to procure insurance. Should they do this, they will then have a third layer of remove between themselves and the procurement of the drugs to which they object – their third-party agent will use corporate (not personal) money to pay an insurance company to procure those drugs.

Further, nothing in this opinion and nothing in the Contraception Mandate would forbid either the Greens or Hobby Lobby from using whatever powers of speech and persuasion are at their disposal to discourage Hobby Lobby’ employees from availing themselves of the disputed drugs described in the Contraception Mandate.

Respondents may, for instance, distribute a memo or modify their employee handbook to include a disclaimer asking employees to please not use Plan B ‘contraception’ because it is an abortion pill, or to make clear that the scope of the insurance plan is mandated by law and contrary to their own personal wishes. Respondents may offer whatever argument they wish to persuade their employees not to use these drugs.[2]



[1] Contrary to an argument submitted by amicus Freedom X, a corporation is not transmuted into its owners by virtue of having selected a particular manner in which it chooses to file its taxes.

[2] It appears likely that Respondents may not retaliate against an employee who nevertheless does use the insurance and the drug, but such a case is not before the Court today.

Likko, C.J., was joined in this dissent by Togut, J.

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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133 thoughts on “Sebelius v. Hobby Lobby Stores, Part III: Justiciability of Individual Claims [Updated]

  1. Further, nothing in this opinion and nothing in the Contraception Mandate would forbid either the Greens or Hobby Lobby from using whatever powers of speech and persuasion are at their disposal to discourage Hobby Lobby’ employees from availing themselves of the disputed drugs described in the Contraception Mandate.

    And this +1

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    • Uhh… your boss tries to strongarm you into not taking advantage of your insurance–your remuneration–and that’s cool?

      Or is the argument just that such activity isn’t forbidden by the Contraception Mandate? Because that seems cheeky. This law says you can’t do X but you can do Y, so the law is valid… but this other law says you can’t do Y.

      I guess I’m just opening up the big ol’ can of worms that is labour law.

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      • Uhh… your boss tries to strongarm you into not taking advantage of your insurance–your remuneration–and that’s cool?

        Do you see a problem, there?

        I do, myself, but that’s the conversation we should be having, no?

        I mean, if you see a problem there, it’s not clear to me how that problem doesn’t eat this problem for lunch, with some leftovers.

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      • Patrick,
        I’d rather have a more reality-based conversation about how it’s not cool for corporations to murder their slaves, even if they are troublemakers.

        And what we intend to do about it.

        (I’d honestly be kinda happy about bounties for proof of “accidents” like that).

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      • “Employer can dictate how you use your compensation” seems to be a superset of what’s going on in the particular Hobby Lobby case, not a subset.

        We currently allow that, in particular cases. While I’m not sure it’s a good idea, I also don’t understand how that allowance in those particular cases doesn’t present HL with a way to avoid their current dilemma.

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      • Maybe?

        I’m not clear.

        It seems to me (and I’ve mentioned this before regarding this case) that Hobby Lobby has a preexisting deferential option. They can require, as a condition of their employment, that their employees not avail themselves of contraception.

        I mean, that’s there. It’s an existing ability. Again, BYU does this.

        Given that this is an existing ability, it doesn’t appear to me that they can make a credible case that the government is creating an undue burden on them. They already have an out.

        They choose not to take that out… for whatever reason. But this then puts them in a pickle, because they are

        (a) accepting they have a responsibility to provide medical insurance and
        (b) claiming they have a religious obligation to only provide certain types of medical insurance.

        In short, they’re saying, “My existing deferential treatment is insufficient, I want additional deferential treatment, the deferential treatment to decide what constitutes medical care for my employees”.

        That doesn’t seem like a religious freedom issue to me. They have religious freedom. They can require that their employees not use contraception. They can actually require that their employees not use their actual monetary remuneration to get an abortion as a condition of employment. They have a get out of jail free card.

        But they don’t want to exercise that freedom. They have the get out of jail free card, but they don’t want to use it, and now they’re demanding that they not have to pay the $50 to get out of jail, as well.

        Why do we need to grant them additional freedoms, here?

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      • I hadn’t thought about this that way before. There may well be a lot of merit to that line of argument, though I don’t think it gets at the standing issue so much as it gets at the substantial burden issue. Had I seen that argument actually made in the briefs (and maybe it was made in an amicus brief that I didn’t get around to reading in any kind of depth), it may well have changed my mind on that issue.

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      • I’m not actually suggesting we grant them additional freedoms here (and I don’t like the idea that they can rule over their employees’ reproductive systems, so I guess I want to give them fewer freedoms than they have).

        They still have an argument to make, though.

        For instance, should they take the BYU route and an employee does something that HL views as murder, and does so on HL’s dime (well, that’s HL’s argument, at least), HL can fire that person, but that won’t retroactively stop the “murder”. And it won’t change the “fact” that HL participated in the “murder” (again, all according to HL’s viewpoint).

        So we’d be right back to the beginning, with HL claiming an infringement on religious freedom. They’d be right, and the judges wouldn’t have explained why the law is still ok.

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      • For instance, should they take the BYU route and an employee does something that HL views as murder, and does so on HL’s dime (well, that’s HL’s argument, at least), HL can fire that person, but that won’t retroactively stop the “murder”.

        Well, sure, but they’re already in that boat. They pay people with money. If someone takes that money and has an abortion, firing them won’t retroactively stop the murder, either.

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      • Yes, but is there a difference if HL gives money or if the government forces it to give out abortion coupons?

        I get your arguments against HL’s case, and I mainly agree with them. But just because you have the more persuasive argument doesn’t mean that HL’s argument has no merit whatsoever.

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      • I should clarify the “abortion coupon” comment, as it comes off gruffer than I’d meant: there is a question about the difference between giving money that can be used for anything, giving in-kind transfers or giving insurance.

        I don’t think we can just say, without any consideration, that these sorts of remuneration are all exactly the same.

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      • Yes, but is there a difference if HL gives money or if the government forces it to give out abortion coupons?

        Over on the other thread, I’m basically arguing with Jim about characterizing this as “abortion coupons”.

        I’d argue that this isn’t the right way to frame it.

        I’d argue that it would be on Hobby Lobby to explain why there is a difference, if there is one. Why is “the government requiring them to provide a less fungible form of compensation than money” undue, given that they already give the money, and they already possess the ability to put constraints upon the fungibility of the money?

        But just because you have the more persuasive argument doesn’t mean that HL’s argument has no merit whatsoever.

        Sure. But that’s the case here: their argument has to have more merit; they have to make the case that the government is causing them an undue burden.

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      • Can you point me to more information on the BYU thing? Since BYU is owned and operated by the church, I’m not sure if they are subject to the mandate. The church itself doesn’t object to contraception, though Deseret Mutual doesn’t cover it for family planning services. Deseret Mutual currently has no plans to institute contraception coverage.

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      • They pay people with money. If someone takes that money and has an abortion, firing them won’t retroactively stop the murder, either.

        Their claim, whatever you think of it, is that they’re *participating* in the murder if they pay in contraceptives, but not if they pay in money. After all, they have to pay employees with something – paying with money is the least murder-promoting way to pay other than, I guess, paying in anti-abortifacient-contraceptives literature, which really doesn’t get the whole “paying” (with a thing of value) function accomplished.

        What they’re suing to vindicate is their right not to be “forced” tp *participate* in the murder. They’re not suing to *prevent* the murder (That’s the job of the police, is maybe what they think. Or maybe not.)

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      • “Sure. But that’s the case here: their argument has to have more merit; they have to make the case that the government is causing them an undue burden.”

        I agree! This thread started when I questioned if companies should be able to “persuade” their employees not to use birth control or whatever. We’ve circled around to a number of different aspects of the overall case, but I’m not really sure what the topic of discussion is.

        To me, HL doesn’t seem to have a good enough case, especially with that BYU get out of jail free card. So, to me, HL deserves to lose (at least I’ll say that until I’m persuaded otherwise). However, I still think there’s potentially a relatively minor infringement on religious freedom, and I think they have every right to make that complaint.

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      • Mark, this is Patrick’s killer argument from long ago when we argued over the contraception mandate. He’s been slaying dragons with it ever since. FWIW, I think it’s the best response to religious exception arguments. It just obliterates most of them those remaining upright are dazed and confused.

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      • Sorry, Will, I may be misleading you.

        BYU has a code of conduct that forbids certain behaviors based upon their religious principles.

        You can be fired, as a faculty member, for violating the code, and you can be refused tenure or advancement.

        To the best of my understanding, this is all perfectly legal and aboveboard.

        Again, to the best of my understanding, there is nothing prohibiting Hobby Lobby from making a similar sort of requirement of their employees (if I’m wrong, of course, that throws the whole line of discussion under the bus, but that’s my understanding).

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      • “Their claim is that they are participating in murder if the pay in contraceptive.” That’s incorrect, as they are not paying in contraceptives. They are paying a third party insurance company $$ that the third party insurance company pays to a doctor for the doctor to provide/perform “unsavory” medicine/procedures. And claiming that this is such a direct a link as to violate their religion.

        Substitute “third party insurance company” above with “employee”, however, and somehow the link becomes indirect enough that HL is OK with this? I don’t think that’s a sound argument. Do you?

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      • Switters,

        I think that’s significant as well. I was clarifying what their concern was to Patrick, is all. It’s not that the employees do or don’t use the contraceptives (“commit murder”). It’s that they don’t “participate” in said murder in this way. I’m not sure we can say we’re addressing the one when we’re addressing the other. They’re actually different interest.

        However, I do like the basic thrust of Patrick’s solution to an extent. It’s this: “There’s no infringement on HL or the Greens’ free exercise here that isn’t addressed by their right to free association.”

        The issue is, for one, whether we ultimately endorse that much free association: do we really endorse the making of employment conditional on not using contraceptives?

        The other issue is, can a restriction on one fundamental right be justified by the freedom created by another? I.e., by choosing to associate with people who hold different views, do the Greens’ consent to having their free exercise be restricted in the course of that association?

        I don’t think we can clearly say the answer is yes or no. There are clearly things the state will be able to say they can’t do even though they may have areligion that tells them they can (or must!). There are Satanists, after all, who would go around killing people the choose to associate if we let them. So the nature of the association, the nature of the action (the “exercise” of religion), and the interest of the state all come into play. The employment association is a special case that the state has a reasonable argument should have some special conditions (meaning, potential restrictions on various freedoms, even ones in the Constitution). But that doesn’t mean “plenary authority to govern comprehensively.”

        Thus you get to compelling and important government interests, appropriately tailored and least restrictive means and all the rest. There aren’t clean distinctions; it’s all a matter of balancing interests.

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      • It’s that they don’t “participate” in said murder in this way. I’m not sure we can say we’re addressing the one when we’re addressing the other. They’re actually different interest.

        It’s hard for me to construct a semantic definition of “participation” that would make “paying people money so that they can do something I with which I find a moral objection because I’m therefore implicitly participating in the something” with “providing people (foo) so that they can do something with which I find a moral objection because I’m therefore implicitly participating in the something”.

        You’re either enabling the thing you find morally objectionable or you aren’t.

        You’re either attempting to constrain someone from doing something morally objectionable or you aren’t.

        I’m not sure the difference is one of kind.

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      • Their claim, whatever you think of it, is that they’re *participating* in the murder if they pay in contraceptives, but not if they pay in money. After all, they have to pay employees with something – paying with money is the least murder-promoting way to pay other than, I guess, paying in anti-abortifacient-contraceptives literature, which really doesn’t get the whole “paying” (with a thing of value) function accomplished.

        This is probably their claim, but it is exceptionally silly.

        Because they aren’t paying in contraceptives. They’re paying in insurance.

        Has anyone noticed that, strictly speaking, it is more work to use insurance to buy contraceptives than buying them with cash? You can literally just *hand over* cash and get contraceptives, using insurance is a whole process. Having employees use insurance makes it a longer and more indirect process than having employees use cash.

        Admittedly, it makes it *more expensive* for the employees, yes. But Hobby Lobby is not, and can not, argue that it has a ‘right’ to make employee compensation not got as far.

        And now here’s a weird hypothetical: Let’s say that the government, for whatever reason, decided that corporations over 50 employees must pay those employees using direct deposit if the employee wants so.

        And let’s also postulate, in this universe, that abortion providers do not accept cash.

        Does Hobby Lobby have an exemption to that law, under the logic that somehow paying people by directly putting money in their bank account makes it easier to get an abortion?

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      • Okay, a vriety of points in response. First, fair enough. I just wanted to clarify that that is what they claim, and what they’re interested. They do see a participation in providing the contraception that is not there if they just provide cash… and they aren’t looking to disassociate themselves with people who choose to use these contraceptives. They want to employ thse people and they want to pay them… they just don’t want to (as they see it) [EDIT:] participate in their use of these contraceptives by facilitating their acquisition in this manner.

        On the merits of the ‘in-kind payment equals participation while cash doesn’t’ claim, I’m on the fence (i.e. I don’t reject your view out of hand), but it seems to me you’re just waving it away, not dealing with it. You’re just saying, Nope. Not how it is.

        And we have to remember that the issue here is more than just a merits consideration of that question: it’s a jet-fueled special legal consideration of it because it is framed as a religious conviction. (Whatever I think of the fact that that framing gets to fuel its consideration in the law with jet fuel.)

        But on the merits, have you worked your logic backward? A company that pays its workers in cocaine is no more responsible for any addiction that ensues than a company that pays in cash? And: every company is exactly equally responsible for/participating in whatever its employees do with the money in off hours so long as they pay in cash? (If the amount there is “not at all,” fair enough, and if the answer to in-kind payment is also “not at all responsible for whatever they do with it,” fair enough. But that doesn’t eliminate the possibility that it’s “not at all” for cash, but “a bit” for in-kind goods with very particularly inscribed kinds of uses.)

        Again, I’m on the fence. But I’m not really seeing your argument, more just your arms waving.

        I do think that Switter’s point about third parties and the nature of insurance – i.e. the company is just giving their mployees access to a huge pool of shared medical costs, from which just some poeple will choose contraceptives as one compensated care item, so it’s avery attenuated way in which contraceptives are actually being given in payment) very signficantly affects the strength of the claim about a burden on free exercise, though. But I think that’s a separate point from yours..

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      • As I said to and , I agree that the insurance structure really changes the ballgame here in my thinking about the strength of the burden case here. No doubt. If this actually was in-kind payment in contraceptives (which is largely how it’s being treated), that might be quite different. But it’s a significantly different situation from that. If anything, from what I’ve read of the arguments and briefs, that is what I would place most of the case for incompetence by the government counsel on here.

        But regardless, I was just clarifying that those are HL’s claims.

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      • You’re just saying, Nope. Not how it is.

        No, not exactly. I mean, I think that’s how it is, but that’s neither here nor there.

        Again (said this on the other thread) this is about the undue burden aspect… which isn’t something Hobby Lobby can just assert, it needs to make a constructive argument in this space… and moreover, that’s a gate they need to open/jump over/burn down before we get to the question of whether or not the government has a compelling interest or whether or not this is the least infringing way they could go about it.

        “It feels different” isn’t an argument.

        To the extent that it’s possible to regard those things as different, well go ahead and knock yourself out, Hobby Lobby… make that case.

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      • Okay, I understand now. Your response to me read closer to an assertion that they really aren’t different at all, not just the they have to make the case.

        The problem with demanding they “make the case” on this point is that it falls under the part of the analysis that just depends on what their religion tells them. You’re not going to find many religions that tell employers that if you pay employees money and they get an abortion, you’re partly responsible (via having paid them… maybe via not having provided the right support and counseling at the right time or etc.).

        But it’s just the case that there are religions who tell employers that if you specifically help facilitate the use of these contraceptives (where specifically is defined however the religion says it is) in this way (by providing insurance that covers it) then you are responsible via having done that in a way that you aren’t if you’d just paid cash.

        And the Court has consistently decided that it pretty much just has to take such religious beliefs as they find them. So they pretty much have to accept that there’s aburden.

        But yeah, they have to decide on its size – whether it’s significant. To me, the notion that there’d be no difference if they were straight being forced to hand over contraceptives from if they were just paying cash can’t be just taken on face value. I can see a distinction, and maybe even a significant burden, there, even if we could argue about it.

        What really changes matters is the way in which the insurance structure really mitigates (in my view) what they’re actually being asked to do that they claim is a significant burden.

        So for me for the purpose of deciding this case under precedent, it’s significant that in this distinction you draw,

        It’s hard for me to construct a semantic definition of “participation” that would make “paying people money so that they can do something I with which I find a moral objection because I’m therefore implicitly participating in the something” with “providing people (foo) so that they can do something with which I find a moral objection because I’m therefore implicitly participating in the something”.

        … “foo” is “contributions to fees for access to an insurance pool that provides a comprehensive set of preventative and other health care treatments for people of all persuasions and beliefs, where no one has to make use of any health care treatment she doesn’t want to use, and payment for all items is pooled together – after all that’s the whole point of the mechanism,” and not “abortifacient contraceptives straight-up.”

        To me, that’s the issue that was woefully underargued by the government. …Again (and as as you say), not because the Greens still don’t think both things place a burden on their religious exercise, but because the difference in significance between the burden of forcing them (from among options) to pay into such a pool versus forcing them just to straight-up traffic in abortificient contraceptives is so great. I mean, after all, finally they have to define “significant” via an exclusion of some kind, otherwise any claimed burden will become a significant one by default.

        …But anyway, now that i understand you’re talking about establishing burdens not equating the actual payments, I think I’m probably just giving further voice to your point.

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      • I don’t think

        …nothing in this opinion and nothing in the Contraception Mandate would forbid either the Greens or Hobby Lobby from using whatever powers of speech and persuasion are at their disposal to discourage Hobby Lobby’ employees from availing themselves of the disputed drugs described in the Contraception Mandate.

        equals

        …your boss tries to strongarm you into not taking advantage of your insurance–your remuneration–and that’s cool?

        As far as I can see, they equate only if the employee who does take advantage of the insurance suffers retaliation for doing so. Which is why footnote 2 of my dissent says:

        It appears likely that Respondents may not retaliate against an employee who nevertheless does use the insurance and the drug, but such a case is not before the Court today.

        Hobby Lobby does not lose its ability to engage in speech because it complies with the Contraception Mandate.

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      • I think your argument is based on an assumed, but undemonstrated, similarity. BYU can require female employees to not to have abortions, all faculty to not drink, etc. Can General Electric do that with its employees? I’m struggling to imagine it.

        So the question becomes, is HL more like BYU or GE? If it’s more like GE, then it cannot in fact avail itself of that option.

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    • I agree.

      But there is a flip side to this, too: the right of the employee to exercise their own right of conscience. It’s perfectly ok for the employer to have preferences.

      But don’t the employees also that right? I’m discomforted that we’ve so focused on the employer’s rights, that we’ve lost sight of the approx. 10,000 women we also discussing; and their rights. These forms of contraception are legal and approved. It is an imposition and burden on employees; a removal of their right to make this kind of moral decision in their own right. This is the employee’s health insurance; part of their wages.

      I’m profoundly disturbed that the moral tone here places the employer’s right to make a decision based on their conscience above the employees conscience. That’s not freedom of religion; that’s imposing religion.

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      • Zic, I more or less agree, with some caveats.

        But this isn’t so much a question of “wait, but this implies something I think is worse!” it’s more of “we already allow this thing, why do we need to carve out another exception” and then, oh yes by the way, “are you comfortable with this other thing that we already allow?”

        Should we allow a private employer to make this sort of contractual obligation? That’s certainly a debate worth having, but the point (as far as my argument re: the contraceptive mandate goes) is that we already do. If that’s not enough, why?

        And if it’s too much, doesn’t that sorta imply that we’re arguing about the wrong thing?

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      • “This is the employee’s health insurance; part of their wages.”

        So if Hobby Lobby bumped every employee’s wages up by the market rate for contraceptive coverage and then said “here’s some money, do what thou wilst” would that be sufficient?

        Because, as I said elsewhere, if the point is to provide contraception to women then there are ways to do that other than a metaphorical waterboarding.

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      • So if Hobby Lobby bumped every employee’s wages up by the market rate for contraceptive coverage and then said “here’s some money, do what thou wilst” would that be sufficient?

        See, this is where I say, “Wait a second, if this is an acceptable alternative then how is it that you’re claiming an undue burden on a sincere religious belief?!?”

        Because that seriously sounds to me like a freakin’ accounting objection, not a moral one.

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      • Jim,
        the market rate for contraception coverage is actually negative, as fewer childbirths (and childbirths are hella expensive). So I’m objecting to your line of reasoning on grounds that the math doesn’t add up.

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      • Kim, if true that would destroy the governments “least restrictive” argument. It would give the government am argument on burden, but theydidn’t that argument as far as I know. As far as I know, the entire legal discussion has been predicatedon assomething that costs something worth mostly lay people saying otherwise.

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      • “Wait a second, if this is an acceptable alternative ”

        Um. You’re aware that what I proposed is not legal, right?

        I’m pretty sure that HL would be entirely on board with the idea; but the government has said that, per the ACA, a health plan that doesn’t include contraceptive coverage is not acceptable, and the company would have to pay the no-healthcare tax.

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      • “But don’t the employees also that right? I’m discomforted that we’ve so focused on the employer’s rights, that we’ve lost sight of the approx. 10,000 women we also discussing; and their rights. These forms of contraception are legal and approved. It is an imposition and burden on employees; a removal of their right to make this kind of moral decision in their own right. This is the employee’s health insurance; part of their wages.”

        I think that many see this as a feature, not a bug:

        1) Rights of employers trumping rights of employees.
        2) Right-wing religious claims being treated as matters of fact – a whole bunch of people have treated the Greens’ claim that ‘we believe contraception is murder’ as being a factually and legally true thing.

        I’ve asked, and perhaps I’ve missed the replies, but where else do the supporters of the Greens also assert that claiming a belief that A is B requires a court to act as if A is B?

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  2. The fiduciary responsibilities of the corporate office holders is an interesting consideration; one I had not thought of deeply before; but one that bounds corporate office holders and board members in non-profits. Assuming those positions means both accepting responsibility and accountability for the corporations actions; and that responsibility goes far beyond the responsibilities of share holder.

    So the conflict Burt raises is very compelling. Some pondering is due.

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  3. There is a noticeable slippery-slope aspect to arguments against permitting the Greens standing, mostly following the form “if we permit this, then any corporation can claim a religious objection to any law and make up a religious belief to excuse it!”

    The issue is that this is already possible, at least on an individual level. There is nothing stopping me from going down the courthouse and filing a claim, on religious-freedom grounds, that it’s legal for me to drop acid. Or ignore speed limits, not pay taxes, erect structures on my land for purposes of habitation without following building codes or paying permit fees. The notion of “RFRA allows anyone to claim freedom from anything and make up a religion” would seem to be a problem that we’ve already solved.

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    • True, but the laws severally limit what individuals can do based on their claim of a religion. People can’t speed, etc based on their religion. The same holds for corps, they can’t ignore whatever law they want just by claiming a religion. The opinions presented by those supporting the Green’s seem to open up a lot more options to claim religion as a reason for not doing anything they don’t like. The supporters of the Green’s aren’t showing where the line is ITMO, they are just claiming a new giant swath of turf.

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      • Can we be clear about what laws they can ignore, by constitution and not by statute? [Okay, I recognize that some statutes are relevant, but I’m thinking specifically of Social Security, where the right to not pay it was carved out by an additional rider added later to that law only.]

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      • “The opinions presented by those supporting the Green’s seem to open up a lot more options to claim religion as a reason for not doing anything they don’t like.”

        Please show this by something other than repeated assertion.

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      • huh…the Green’s are claiming a law passed by the gov offends their sensibilities so they don’t want to participate. That seems pretty straightforward. The law in question doesn’t involve their private conduct, where they go to church or tell them how to believe. It involves people who work for them and what those people do in their private lives.

        I see there is a point that this isnt’ actually about religion or laws in general. I actually sort of doubt it would go anywhere in the courts if people said that didn’t have to obey any other laws based on their religion. This is about birth control and sex and women.

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      • Jim,
        see my comment above about clitoridectomies. More importantly, one could use “religious beliefs” to avoid paying for heart attacks ($50-100 k each!), because “it was their time.” Or one could avoid paying for epilepsy, because “that’s god speaking through her.” [And, if we allow HL’s “convenient morality” to stand, well, one might devise these religious beliefs after it starts costing the corporation money.]

        I’m not stretching this too much — many people have objections to life insurance in the first place (betting for or against god’s will).

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      • I disagree quite a bit. The government, in effect, needs only show that it’s important to apply the law even against those with religious objections. Practically speaking, this is not as high a bar as it is in other circumstances – as I mention in my opinion, it’s been pretty rare that the courts have been willing to find a lack of a compelling interest in ruling on religious freedom claims.*

        If you believe that the test should just be whether it’s a generally applicable law, well, that ship sailed when RFRA was enacted. One thing that’s worth noting in that regard, by the way – the standard of laws being consistent with free exercise of religion as long as they are generally applicable is a standard that was promulgated by Justice Scalia – prior to that, the standard had been the same compelling interest test now embodied by RFRA. That standard was crafted by the liberal wing of the Court, and RFRA resurrected it after Scalia’s 5-4 opinion in Employment Division v. Smith.

        One of the most interesting aspects of this case to me has been the way in which it forces conservatives (and indeed Scalia himself) to disown Scalia’s opinion and proclaim the virtues of Justice Brennan, while forcing liberals (and indeed the Brennan Center itself) to distance themselves from Justice Brennan’s words in Braunfeld and at least indirectly seek to more or less revive Scalia’s discredited opinion in Smith.

        *Since I previewed this in part C above, we did find a lack of a compelling interest in this case. But you can mostly thank the government’s incompetence for that.

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      • I think part of the difference opinion rests on how people view women reproductive health care. Those supporting HL tend to see it as something ranging from, stuff loose women use to the equivalent of tylenol they should get on their own. I’d disagree with both those views. Womens repro HC is just as much health care as viagra or heart surgery so there is no reason to carve out an exception here. To a great degree the legal arguments are masking the underlying beliefs about BC.

        There are accommodations that can be made to avoid the issue like making some BC available w/o a prescription but for some kinds that doesn’t alleviate the cost issue. There have been other accommodations raised like giving employees the option to buy a separate small repro HC policy from a separate company while the employers give back a small bit of money the employers pay in premiums.

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      • At the risk of giving too much away, the problem here is that the test under RFRA isn’t simply whether the government has a compelling interest in the law in the first place – it’s whether it has a compelling interest in applying it to the particular company at issue. Since the government has granted myriad exemptions to this particular requirement to myriad other entities, it seemed clear that it needed to make some sort of argument as to why it shouldn’t extend those exemptions to Hobby Lobby. Yet it didn’t even attempt to do this. Like, seriously – it didn’t even address the issue other than by saying the existence of exemptions by themselves doesn’t mean that it lacks a compelling interest. Which is true so far as it goes – it just doesn’t go very far and pretty much avoids the issue entirely.

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      • I wonder if insurance companies already make distinctions between cosmetic surgery and medically needed or with what is experimental and proven. I would guess they do. I wonder if every HC plan anybody would ever conceive of would have to make some distinctions between what they would pay for and what they won’t. Seems like yes to me. I wonder if those distinctions are based on some sort of “is this needed to maintain health” vs. “me want more boners” kind of distinction. Since the answer is lilkey yes distinctions are being made and will be made in any sort of HC system i don’t’ understand any real point to the question.

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      • Since the answer is lilkey yes distinctions are being made and will be made in any sort of HC system i don’t’ understand any real point to the question.

        Oh, from your phrasing (“Womens repro HC is just as much health care as viagra or heart surgery so there is no reason to carve out an exception here.”) I had gathered that you were arguing that they were both obviously things that should be covered and since they’re both obviously things that should be covered therefore (conclusion) but I was not seeing the premise as necessarily true.

        If you were instead arguing that there are some things that just should be seen as the responsibility of the patient to provide for him or herself because we, as a society, are saying that this area falls under the umbrella of “feel free to do whatever you want, but we’re not going to pay for it”, then allow me to say that your use of Viagra as example is a pretty good one and it illuminates things.

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  4. “They may delegate compliance with the Contraception Mandate to someone else who lacks their personal religious beliefs.”

    I find it confusing that, on the one hand, you’re claiming that a more-direct link between a corporation’s directors and the corporation’s public position would be bad, and on the other hand you’re suggesting that a corporation’s board insulate themselves from what they see as moral transgressions by delegating the activities and pretending they’re someone else’s fault. sic transit corporate responsibility, I suppose.

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    • I don’t understand what you mean by “the corporation’s public position.”

      A corporation is not its directors. It has a separate legal existence from them, a separate identity from them. What a corporation does, its directors do not do. That’s what a corporation is.

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      • An interesting fact is that it is the Green’s position as Hobby Lobby’s directors that is actually requiring the action on their part.

        Not their position as the stockholders/owners (Stockholders do not run a company), not their position as officers (As the directors could just hire some other officers to do that job.) It’s their positions as directors, aka, members of the corporate board, the people ultimately running the corporation.

        Directors are not paid. The Greens are paid, via corporate dividends, as stockholders. And they are paid, via normal paycheck, as CEO and CFO and whatever.

        But they are not paid as directors.

        It is a volunteer position that accrues no benefit, and they technically would suffer no damages if they did not continue to hold that position.(1) There’s no reason they can’t step aside as directors and let someone else come in and hire people to manage their insurance.

        1) This might put their jobs as officers in jeopardy, but strictly speaking, as directors, they were supposed to hire ‘the best people’, not ‘themselves’. They can’t argue that some different board members might hire someone else, causing damages to themselves, without also arguing that they didn’t do their fiduciary duty as directors to hire the best person for the job.

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      • Typically, this is right, directorships are unpaid and the real reward for service is appointing oneself to an officer’s position and thus gaining a good job.

        Particularly in this case, though, I don’t see that the directors’ obligation is to do anything other than to instruct officers to comply with the law. Which ought to be a standing instruction anyway.

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      • I would say “ethics” (adhering to an honorable standard of behavior) rather than “morality” (making judgments about right and wrong, good and evil) precisely because we are dealing with a non-human entity. And of course we want directors to always be guided by good ethics when directing the corporation. I would remind them that when they discharge their duties under the guiding light of a strong ethical compass, they act on behalf of the corporation and for the corporation’s benefit, rather than for their own benefit or to (directly) advance their own interests. Consequently, as I’ve argued elsewhere, a wide palette of possibilities exists in this situation for the directors to simultaneously comply with the demands of good ethics, the law, and the pursuit of profit.

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  5. “Speech is free, yet defamation is not protected and speaking in public may be regulated reasonably as to time, place and manner. Freedom from warrantless searches by police have exceptions when exigent circumstances or public safety issues are in play. Litigants have rights to juries, but not as to all claims and states may condition the invocation of the right to jury trial based on a variety of procedural issues. Most people have the rights to keep and bear firearms, and to vote, but those convicted of felonies may find that those rights have been rendered forfeit.”

    But it is important to keep in mind that all of these examples you cite were not a simple matter of legislative or regulatory fiat. They have been (and still are, and likely will be forever) the focus of a vast amount of contentious legal activity and strict scrutiny.

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      • The point is that the existence of restrictions on Constitutional rights does not constitute inherent acceptance of all restrictions; and that the restrictions you cite are not as simple as a tossed-off sentence in a blog post would make them seem.

        As people are so fond of pointing on regarding this case, the existence of exceptions does not necessarily justify further exceptions.

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  6. the sincerity of which is undisputed

    Except by those of us who note its recent vintage , observe that it is the result of being lobbied by a group opposed to PPACA, and understand the tactical advantages of pursuing a partisan goal under the flag of sincere religious belief.

    But it’s all part of the kabuki of constitutional law, which requires us to, for instance , pretend that Shelby County’s equal protection claim was anything other than a direct response to John Roberts saying “if you want to be able to stop those people from voting, you need to say the magic words”.

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      • that’s just sheer incompetence on the part of the Government.

        Why incompetence? I really don’t see it. Seems to me that idiosyncratic appeals to sincerity are pretty irrelevant here given the deeper issue concerning the boundaries between public policy and religious beliefs generally. In other words, it seems to me that denying the case – or basing the case – on HL’s purported sincerity or lack thereof would be to deny the case on a technicality rather than on the substance.

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      • ITA that it’s incompetence (likely at the research stage – I suspect they just didn’t look to see if plans had previously included these contraceptives).

        But I can see reasons not to pursue the argument. Concession of the sincerity of the belief is a general norm in litigation of these issues. There’s reason to think that contesting it in this case could both poison the water among the justices, or poison public perceptions of the government’s case to an extent that wasn’t worth the benefit of the argument. The reason for that judgement might have been that the government judged the benefit of making the argument to be fairly low. The government may have not wanted to endorse a decision in its favor on the narrow point of sincerity as demonstrated in this way, because it would be a legal finding with a tenuous hold on life that wouldn’t settle the issues the government is looking to clarify. They may have not wanted a decision that found against HL but simply invited a plaintiff that didn’t have this particular defect in their fact pattern.

        It just might not be worth the government’s time on this case if they’d be back there in a couple of years making the same arguments in a case where the company was consistent about their objections. Also, the government may on the merits not want to end up with a rule in which part of the procedure for reviewing requests for exceptions like this is an inquiry into past consistency about the claimed objection. That doesn’t seem like the best position for the government to end up in as a operational or political matter. it may on the basis of its own interests want to concede the point because it doesn’t find carving out such a requirement to be in its interest wrt to securing for the people the legitimate policy interest in vindicating the policy intent of this provision of the law.

        Not saying that was the calculation – again I think it’s more likely they didn’t find or didn’t look for this particular inconsistency. And not saying it would be the right calculation. But I could see them making it.

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      • I agree 100% with MD about poisoning public perception. “Obama is calling all of us hypocrites” is not a talking point the administration wants to create. “Schilling is calling all of us hypocrites” is old news.

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      • Fair point – I admit that “incompetence” was probably a bit too harsh of a word on this specific issue.

        When I hire an attorney, I hire them with intent to prevail in court. I expect them to be prepared to start with “the other side lacks standing” and proceed through all of the (reasonable) arguments that would let me prevail. Let the court knock down nine out of ten, but if I win on the tenth point I still win. I don’t pay the attorney to advise me that we’ll win easily on standing so there’s no need to prepare any other arguments. The attorney may price me out of pursuing too many other arguments, but we’re talking about the federal government paying the bills here.

        We have a case currently in progress in Colorado in which a number of elected officials are challenging the Taxpayers Bill of Rights amendment to the state constitution on the grounds that it denies citizens of Colorado “a republican form of government.” The state’s whole argument in federal district court was that it was a political question, hence non-justiciable. All of the other possible arguments got a lick and a promise, or less. The district court and now the appeals court disagreed. So the State is back in district court having laid a miserable foundation.

        I don’t think incompetence is too harsh.

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      • When I hire an attorney, I hire them with intent to prevail in court.

        I’ve never hired an attorney, but whenever I do, it will be with intent to advance my interest in exactly the way I want to advance it to the extent possible (consistent with the attorney’s ethical obligations). Prevailing in court on a point that doesn’t advance my interests as well as not prevailing on (or not arguing) that point …doesn’t advance my interests as well as not prevailing or not arguing the point does. So, I wouldn’t want an attorney I’d hired to do that.

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      • Yeah, I think “incompetence” is far too strong a word. “Habit” might be the way to go.

        In almost every case where free exercise rights have come in to question, the sincerity of religious belief has gone unchallenged. How, after all, is one to test the sincerity of one’s belief? (Particularly when people are imperfect and periodically behave contrary to the dictates of morality they agree to?) And if you claim someone’s religious belief is insincere, you mostly come out looking like an ass.

        That doesn’t mean the sincerity of the belief cannot be challenged in theory. It’s just that pretty much, no one ever does challenge belief. In a parallel thread, there is some challenge to the belief that “Pastafarians” hold sincere beliefs. One might ask similar questions of those who claim to subscribe to the Jedi faith or the theoretical incarcerated prisoner who claims that it violates his religious rights to have to eat crunchy peanut butter instead of creamy.

        But particularly when the religious beliefs under question are identified with known and innocuous religious sects for which a degree of cultural tolerance exists, when you say “You don’t really believe that!” you wind up looking like a dick and the other guy winds up looking like the victim. Typically, that’s not good legal strategy.

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  7. The fundamental problem with the Greens’ claims today is that they are not the ones who are asked by the Contraception Mandate to dispense the disputed drugs. Only Hobby Lobby and Mardel are asked to do this. The Greens are not obliged to do anything – and they are not Hobby Lobby. Corporations, even closely-held corporations such as Hobby Lobby, have long been held to have identities separate from individuals who own and control them, and their owners may be effectively compelled to act in the capacity of an agent of the corporation sometimes directly contrary to their wishes and desires as individuals.

    This is exactly the point I keep making.

    Although ‘ their owners may be effectively compelled’ is confusing. That is true in this specific instance, but what can actually be compelled is the officers. It’s just that’s the same people here.

    When faced with a choice between compliance with the law and the inevitability of drawing a crippling liability upon her ward, a fiduciary must set aside her own preferences and desires, and acts in the best interests of her ward. The minimum that a fiduciary can do in this case is to get out of the way of the corporation’s compliance with the law. A fiduciary who cannot do this for whatever reason, including a personal religious objection, is not relieved of her duty to act in the best interests of her ward.

    Indeed. Hobby Lobby is required, by law, do something.

    This means that their agents have a duty to that thing. And by their ‘agents’, we mean their officers, or someone that the officers have hired. If their agents do not wish to do that thing, it is the duty of the directors to remove and replace those agents.

    It does not actually matter that the officers and the directors are the same people, and who the stockholders are is not relevant at all. (Stockholders do not have any say in the running of a corporation beyond selecting directors.)

    If the officers of Hobby Lobby are uncomfortable with dealing with an insurance plan that provides contraceptive insurance, I suggest they ask their directors (aka, themselves) to hire another officer to do that, or that they themselves hire an employee to do that.

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    • “Well, your honor, I may be the CEO of this corporation, and I may have specifically directed my employees to hire a subcontractor whom we knew could not properly dispose of hazardous waste, but as it was the subcontractor who dumped the mercury in the ditch behind the factory and not any of the corporation’s employees, we therefore argue that no blame can be attached to this corporation for the subcontractor’s activities”.

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      • Fracking companies use this defense all the time. Except they don’t, because the gov’t only takes the subcontractor to court.

        BP wasn’t allowed to get away with that (BP’s own engineers were howling bloody murder about the mess the subcontractors made. safety violations that they bloody ought not to have allowed).

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    • The thing is that this quickly becomes very problematic once you start applying it to other realms. As I mention in my opinion – and this indeed is the thought exercise that completed my change of heart on this issue – insisting that a business owner may never have standing to assert religious freedom claims based on regulatory actions directed at his business means that the government has carte blance to target disfavored religious groups just as long as it limits that targeting to incorporated entities. I am not comfortable at all with the notion that a local government can target a religious group – say by requiring businesses in its downtown area to be open on certain days of the week – and avoid anyone having standing to challenge it simply by pointing out that the business has a corporate form. Allowing the government to do that would be to allow it to de facto restrict the availability of the corporate form to favored religious groups.

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      • I think you’re right, they have to have standing to at least say something. At least individual proprietors. (is there any business where you don’t have at least one? — maybe banks. But I’m fine with government mandated usury (provided someone can come up with a reason why this would be a good idea — i’ll be lenient).)

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      • It’s actually pretty thin as an argument against your view. It mostly lays out what you’re saying and acknowledges it as a problem, and then tosses off an Establishment Clause solution to the problem of preventing specifically targeting corporations for the religious beliefs of their owners. There’s very sparse argument for adopting that solution (it’s actually not clear he even endorses doing so). I kind of expected a follow-up when I read it, but haven’t seen one.

        And yeah, I stumbled across Dorf in the last year or so. He’s very good.

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      • I didn’t read it as endorsing the EC solution so much as recognizing that the targeting question presents serious problems for the government’s position. Dorf’s recognition of those problems for the government’s position – which he seemingly supports – is admirable.

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      • I am not comfortable at all with the notion that a local government can target a religious group – say by requiring businesses in its downtown area to be open on certain days of the week – and avoid anyone having standing to challenge it simply by pointing out that the business has a corporate form. Allowing the government to do that would be to allow it to de facto restrict the availability of the corporate form to favored religious groups.

        What do you mean ‘ the availability of the corporate form’?

        The Greens are stockholders. If Hobby Lobby is doing something the Green do not like, they have the right to sue Hobby Lobby, or sell their stock.

        The Greens are directors. Directors functionally have no ‘rights’ at all, except to vote and whatnot. They have duties to comply with the law.

        The Greens are officers. Officers also have duties to comply with the law, and also are employees so can sue Hobby Lobby under employment laws.

        People have no right to own, or be employed, in a corporation with specific ‘values’. Even if it is a corporation they are trying to create themselves.

        That is a distinct entity they’re creating. It is required to exist in certain very conscribed boundaries.

        For example, it must have a CEO. It must hold an annual meeting of the shareholders. It must keep specific records. The name probably has to include ‘inc’, or ‘co’ or ‘ltd’ and can’t be longer than 80 characters. It must submit certain activities to shareholder vote. It must recognize union votes. It must provide health insurance as defined by the ACA if over a certain size.

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      • Oh, and that said: I don’t disagree with the idea of them having standing, per se. But that’s because I extremely dislike the idea of ‘standing’ stopping people from suing, and dismissing over ‘standing’ should be limited to things where people clearly have no interest in a case. And moreover, I’m of the opinion that the Supreme Court basically should be exempt from the rules of ‘standing’ on top of that.

        And hence I’m not really the best judge as to whether they should have standing under the law. I am in favor of as lax an idea of ‘standing’ as possible.

        I think the case should be dismissed, however. Not because of standing, but because ‘a corporation deciding to not provide a employment benefit as required under the law’ cannot possible be ‘religious exercise’ under the RFRA, because corporations cannot exercise religion.

        And the Greens, while they can exercise religion, are not actually required to do anything. Well, except they do have a the fiduciary duty as directors of the corporation that they have voluntary taken on. If that duty interferes with their religious beliefs, they should probably, uh, stop volunteering to do that.

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      • In passing the reason I hesitated to say ti was exactly on point is that it’s not clear to me that Dorf is using this argument to say that the Greens as individuals must have standing to preserve an interest against targeting, since the corporation doesn’t (which I take to be your argument). He seems to be still dealing with the issue of whether the targeting problem gives the corporation standing:

        “In this view, a corporation that suffers a business detriment incurs an Article III injury, and then it can sue because anybody injured by a law that violates the Establishment Clause has standing to vindicate its structural principle.”

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  8. Wow, this is a tough one. I agree with pretty much the entirety of the dissent but I’m with the majority that the Green’s have standing here. It seems to me that denying standing on the grounds argued by the minority would effectively constitute upholding the legitimacy of the contraception mandate in advance of actual argument leading to that conclusion. On the other hand, the arguments for denying standing strike me as compelling reasons to rule against Hobby Lobby in any event.

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    • Yeah, this really was tricky. I started out vehemently against any standing for the Greens or HL, but as I thought about it and looked at it more, it quickly became really murky. I think the arguments against standing for the Greens are pretty strong and I still have a good amount of sympathy for them. Ultimately for me (and I think at least one of the others who joined my opinion), it came down to the fact that an outright denial of standing would create a blanket rule without any limiting principles but with some really (in my view) unacceptable consequences, while a grant of standing could be readily limited in a way that should mitigate most of the problematic consequences.

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  9. In this opinion, the majority states:

    Of greatest importance in this regard is the fundamental significance of the right the Greens seek to vindicate in this suit – namely, their freedom of religion. Freedom of religion is a core liberal value under our Constitution that “look[s] primarily to the preservation of personal liberty, rather than towards the fulfillment of collective goals,” and the Government may not so casually “put an individual to a choice between his business and his religion.” Braunfeld v. Brown, 366 U.S. 599 (1961)(Brennan, J., dissenting). To adopt a rule, such as that advocated by the Government and its amici, that an individual owner may never assert even a Constitutional injury due to actions the government requires he take on behalf of his business would have the potential to do great harm to individual liberty and, in the case of religious freedom, would quite literally “put an individual to a choice between his business and his religion.”

    And yet, in part 1, which all the Justices joined, it was stated that:

    the Supreme Court determined in Employment Division v. Smith, supra at 879, that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” This remains the Supreme Court’s interpretation of the Free Exercise Clause to this day. RFRA is a statute, not an amendment to the Constitution.

    Do you assert that there IS a constitutional injury to be addressed here, despite Employment Division v. Smith?

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      • It is “of greatest importance” in regard to “demonstrat[ing] that the injury is in fact directly and personally experienced by the Greens” that the it is a “Constitutional injury”.

        But, in the final section, the Greens prevail on a statutory claim under the RFRA, not a constitutional claim. If constitutional injuries specifically are “of greatest importance”, then you could find standing for the constitutional claims but not the RFRA claim, could you not?

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    • I see no logical dissonance, either, and I’m in dissent on this point. RFRA is a statute, not a provision of the Constitution. Justice Brennan’s opinion in Braunfeld is a dissent and not binding law.

      Now, I don’t agree with the majority here that the Contraception Mandate requires the individuals to do anything. I do see that it requires the officers of the corporation to do something. And I realize that in this case, these are the same people, but the reason I included a lengthy discussion of the various “hats” a person wears with respect to a corporation was to point out that these are roles that can be filled by more than one actor. William Shatner played the role of James Kirk. But Chris Pine can do that, too. Barack Obama is currently the President of the United States of America. He is not the United States of America. He is not the Government, only the current holder of the government’s highest office.

      Because these roles can change, because the functions necessary to comply with the law can be delegated to others and indeed in this case apparently must be (hence my discussion about fiduciary obligations), I don’t find that the individuals suffer a substantial impairment on their ability to exercise their religious beliefs. But, I was in the minority here, so apparently those arguments weren’t sufficiently persuasive with my Brethren.

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  10. Moreover, the Oklahoma state law of fiduciary duty requires that the Greens, when discharging their duties as corporate officers, not elevate their own interests and preferences above that of the corporations that they administer. In Oklahoma as in all the States, fiduciaries must elevate the financial interests of their wards above even their own.

    When faced with a choice between compliance with the law and the inevitability of drawing a crippling liability upon her ward, a fiduciary must set aside her own preferences and desires, and acts in the best interests of her ward. The minimum that a fiduciary can do in this case is to get out of the way of the corporation’s compliance with the law. A fiduciary who cannot do this for whatever reason, including a personal religious objection, is not relieved of her duty to act in the best interests of her ward.

    Burt, I’d appreciate if you could explain this point further to me. I’m sorry to go off topic, but this relates to a subject that is of extreme interest to me.

    It seems to indicate that – to give a different kind of example – if a manufacturing company based in Oklahoma was operating overseas in a country that did not have laws against child labour, and that company could profit from using child labour, it would be illegal and negligent for the company to refrain from using child labour. Or, for another example, that the same would be true for a company spending money to reduce output of toxins into a nearby body of water below the minimum requirements of the law. In short, the law of fiduciary duty appears to ban corporations from choosing to act in an ethical manner, even if their directors wish to do so.

    I have heard this claim about corporations from left-wing sources before – that for their directors to consider any standards of ethics, morality, humanity, or any other consideration besides profit, is impermissible and considered wrong. Is this a correct description of the situation (or at any rate, of the situation for corporations based on Oklahoma)? And how many other US states have similar laws? Does the United States have national laws stating the same?

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    • There is indeed a school of thought that holds exactly this, that an aggressive understanding of the fiduciary’s obligation to maximize shareholder value requires sacrificing literally everything else not explicitly contrary to law for the sake of maximizing profits, and it is the job of the government to “back-fill in a conscience” through operation of law. I’d like to say that’s a caricature of what the law really requires, but there are derivatives suits pending right now that seem predicated upon this exact theory.

      If you get from that paragraph that I don’t think it’s quite that extreme, you’re right. I think the law requires that officers and directors make reasonable business decisions which are calculated to enhance shareholder value in the long run. Many of these derivatives lawyers are principally guilty, in my opinion, of valuing short-term increases in stock price at the expense of increasing capitalization, reinvestment, dividends, earnings, sustainability, or long-term growth. And I believe that there is a wide latitude of decisions that can reasonably be made for articulable business reasons and justified by any of a number of credible and sensible goals that involve sacrificing neither profit nor ethics.

      Nor do I think that my Brethren in the majority would disagree with any of this. Indeed, they’d take it a step further and say that a corporate officer ought not be obliged to sacrifice her personal morality simply because she takes up the duties of serving as a corporate officer — rather, she should be allowed to discharge her corporate duties in a way congruent with her sense of personal morality.

      Mostly, I’d agree with that because I think that the breadth of decisions and options available is wide indeed. Here, it seems to me that hiring a consultant to procure legally compliant insurance solves the problem nicely. Outside of that universe of options, though, is breaking the law and not paying the price for it. But if you wanted to push it to an extreme case and resist anyone’s suggestion of a way to reconcile the apparently competing imperatives, then you’ll have to sleep in the forced-choice bed you’ve made for yourself, and then yes, you’ll have to make a choice between morality on the one hand and service to the corporation on the other.

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  11. …all of the owners … are all actively involved in the management of the business, and they represent the entirety of Hobby Lobby’s active ownership. To avoid directly acting in contravention of their religious beliefs, the owners would need to divest themselves of at least some control of the business and place it in the hands of a third party. … the Greens have affirmatively used their businesses as a vehicle for expressing their religious beliefs. … …the profits of the businesses are attributed directly by the federal government to the Greens individually.”

    Vs.

    …a corporation…creates a different legal entity through which business is done. Individual stockholders do not personally transact with others, so they do not incur liabilities to them. This is true even in a situation where a person is simultaneously a shareholder, officer, and director of a corporation – that person does not personally do business with the third parties. The corporation does, under the control of that officer. “The distinction between corporate and individual enterprise is one of the deepest in our constitutional law…”

    I find it very difficult to resolve my choice between these two statements, both of which I find compelling, and neither of which quite answers the other. I think, though, that ultimately I’m chilled by the implication that a group of co-religionists cannot create a corporate form to pursue their actions for the glory of god. In this respect I’m less concerned with HL, which while run on Christian principles stocks predominantly secular–albeit carefully selected to be non-offensive (except aesthetically)–products, than I am about the religious bookstore, which sells predominantly religious product.

    I’m also bothered by the claim that as mere fiduciaries they play no actual role in the purchase of contraceptives. When they stand before god (assuming such an improbable event), will god agree with, or feel constrained by, your legal argument that they are absolved of moral respndibility? This is where Justice Kowal’s comment about the state standing in fir the individual, about each person being accountable to god individually, bears with great force.

    As an interpretation of American law, I think Justice Likko has the upper hand. The law does make the crucial distinction between corporation and owner/manager that he claims. But in a case involving an owner/manager’s answering to god, I think the law may be wrong.

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    • To avoid directly acting in contravention of their religious beliefs, the owners would need to divest themselves of at least some control of the business and place it in the hands of a third party. … the Greens have affirmatively used their businesses as a vehicle for expressing their religious beliefs. … …the profits of the businesses are attributed directly by the federal government to the Greens individually.

      Side note on this: The Greens are actually pretty inconsistent about “acting in contravention of their religious beliefs”, given that during holiday season, for example, they require employees to work behind the scenes (stocking, etc.) rather than stand by the religious conviction of not working on the Sabbath.

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      • I have no problem with you arguing that. I have a great problem with you (me, or anyone else) getting to authoritatively say “you didn’t follow your religious beliefs as closely as I think you ought to have, therefore you have no grounds to object to our requirement that you further violate them.”

        I find disturbingly little concern for conscience rights in this discussion, whether from the liberal side concerning religious conscience or from the religious side concerning non-religious based conscience. So I get to holler BSDI!

        Who will stand with me for conscience rights, period?

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      • Who will stand with me for conscience rights, period?

        Hm.

        You know, James, this would stir me a bit more if conscience rights on things I care about (like, say, the draft) weren’t so goddamn hard to claim.

        Offered as a bit of self-incrimination, here. Not sure what that means yet, maybe tomorrow.

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      • I have no problem with conscience rights.

        I have a problem with someone claiming conscience rights to force a party other than themselves to shoulder that burden.

        That is to say, if the Greens have a conscientious objection, then it’s their choice and shouldn’t impact employees who get screwed if they don’t agree with that objection.

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    • This is sort of my evolution on the issue. When the corporation/person distinction was first suggested around these parts I loved it. Loved it! It solved everything. It was only when I started thinking about the further ramifications that I realized that I had some problems with it and that it didn’t actually solve the tension between public law and private conscience.

      I was thinking of a kosher and halal rather than a bookstore, but the same general principle. I’m not sure that $2000/y/e is a substantial burden, but “You can’t organize your business as anything but a sole proprietorship if you want to do business in accordance with your religious beliefs” seems to me to be.

      Which, btw, is not a blank check for businesses to do whatever they want in the name of religion. But it does at least point to a tension that’s not cleanly resolved with a blanket denial of standing or “a company has no religious beliefs.”

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    • As a point of clarification, when I say that–for me–neither of those arguments answer the other, I’m commenting on what I see as a deep conceptual difficulty, and not critiquing the authors of the arguments. Justice Likko asked me on the other thread whether this post addressed my concerns on the corporate/person issue, and both sides do so well. But like Will Truman, I remain unresolved. I don’t think either side has played a true trump card, and am increasingly doubtful that there is one to be plaid.

      I keep thinking of categories of incorporated organizations, and view them along two dimensions. One one dimension we have the legal structure, with (I think) three categories: non-profit; closely held/private, and publicly traded. On the other dimension we have business model: predominantly religiously oriented; predominantly secular oriented. This gives us six categories.

      1. Non-profit religious: synagogues, churches, mosques, Focus on the Family, St. Francis university, etc.
      2. Non-profit secular: Brookings Foundation, American Red Cross, a local environmental group, etc.
      3. Closely held religious: Mardel Christian bookstore; maybe Hobby Lobby?
      4. Closely held secular: these, apparently; maybe Hobby Lobby?
      5. Publicly traded religious: a null set?
      6. Publicly traded secular: GE, Nike, Lowes, etc, etc, etc.

      The law makes distinctions. In fact the difference between law and personal authority is largely that law makes distinctions based on principles, rather than arbitrarily and capriciously. So the relevant questions here are 1) what distinctions between these categories does the law make, and 2) what distinctions ought it to make?

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  12. The “dissent” in this article has numerous flaws of fact and/or logic:

    The entire “section A” sets up what We might call a “false background” upon which “section B” is built. It ignores the fact corporations can only act by the actions of Individuals and cites the *dissent* in Shapiro v. U.S. in an less-than-compelling attempt to make its case. The footnote to this section then claims the amicus brief of Freedom X argues “a corporation is transmuted into its owners by virtue of having selected a particular manner in which it chooses to file its taxes”, which simply is not true. The relevant portion of the brief argues, “Tax law mostly ignores their nature as ‘artificial beings,’” and then provides examples. The footnote, conversely, just dismisses the argument with neither a counter-argument nor evidence impeaching the examples, calling into question the footnote’s sincerity.

    Turning to “section B”, We see the false background lead to significant error. The claim “Only [the corporations] are asked to [adhere to the mandate]”, as I note, ignores the fact corporations can only act by the actions of Individuals. Therefore, the assertion “The Greens are not obliged to do anything” is patently false: They must direct the health plan Administrator to provide such coverage or direct an Employee to make a payment for the objected-to products or direct an Employee to perform such direction Themselves. The repetition of the irrelevant “corporations are legally separate” argument does not make it more relevant.

    The reference to Braswell and subsequent attempt to link this case to it ignores the fact the congress, in the Religious Freedom Restoration Act (RFRA), explicitly directs the federal agencies to provide accommodations for religious exercise, subject to certain limitations. As noted in Thomas v. Review Board, even if “the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial”.

    The attempt to link this case to Braswell also demonstrates a fundamental ignorance with regards to the case. The Author writes, “an insurance company (yet to be identified) will actually purchase the drugs, and those drugs will presumably be dispensed by medical professionals such as doctors and pharmacists”. Because Hobby Lobby is Self insured, this statement is incorrect. The ease with which a simple web search reveals this fact suggests the Author of the “dissent” is lazy, incompetent, or deceitful.

    Equally problematic is “section C” because, even if Oklahoma state law “requires that the Greens, when discharging their duties as corporate officers, not elevate their own interests and preferences above that of the corporations that they administer”, that law must comply the requirements of the Privileges or Immunities Clause of the 14th amendment. In other words, “A person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program”, such as one which provides liability limitation, Thomas v. Review Board.

    However, even if not the case, the fiduciary argument ignores Who such laws are meant to protect: the Shareholders. Since the Shareholders are in unanimous agreement to relinquish monetary gains in order to exercise Their religion, Nobody exists with any standing to object.

    This section then reasserts “a reasonable means is available … to bring the company in compliance with the law”, as if the legal acceptability of the mandate were a given and not a conclusion to be reached if logically sound to do so.

    The parade of horribles raised by “section D” presumes courts are incapable of preventing logically unsound rulings from occurring or, even if they are, the legislature is equally powerless to prevent and/or correct problems. Vague references of “abuse of corporate privilege” are too amorphous as to be meaningful. The best defined reference of “[exempting] the corporation from laws of general application” ignores the fact the congress explicitly stated, subject to limitations, it wanted just such a principle in the law when it enacted RFRA and, if such abuse arises, amending RFRA is certainly possible.

    The slavery reference ignores the fact the 13th amendment still has full force despite the enactment of RFRA.

    The claim “the Civil Rights Act cannot be deemed ‘narrowly-tailored’” reads a phrase not in the text of RFRA. The Civil Rights Act prevents injuries which simply cannot be rectified without telling Employers, “You may not discriminate based on race, religion, etc.” when it comes to hiring and firing.

    The tax argument itself has multiple flaws. Courts have clearly and emphatically stated the congress has a broad power to decide how it spends the money raised by tax revenue and religious claims objecting to taxes being spent for war are invalid by dismissing outright suits brought to challenge such expenditures. The Jehovah’s Witnesses argument is based on a false stereotype: Jehovah’s Witnesses consider it a sin to deny Others Life saving medical care, even if that care involves blood transfusions and I challenge the Author to provide an official statement to the contrary. The concern over “Members of other Christian sects who object to contraceptives” sounds nothing more than “OMG, You want People to actually USE Their religious liberty?!? How horrid!!!!” and is or should be thoroughly insulting to Anyone of any faith of any kind.

    The Church of Lukumi Babalu Aye reference apparently seeks to substitute a different legal standard than the one congress explicitly articulates in RFRA and, consequently, further suggests laziness, incompetence, or deceit on the Author’s part.

    The statement “Minorities have rights that are beyond the scope of the majority to regulate, but at some point in a democratic system of government, the majority rule must apply,” ignores the fact the majority did rule not once but twice when the congress first enacted RFRA nearly unanimously and again unanimously seven years later. Why the Author wants to jettison the rule of law is beyond Me.

    The Author then conflates religious exercise with religious belief. As noted in My comment on an earlier post in this series, the two concepts are distinctly different. However, the broader point of “an invitation for clever and cynical litigants to dodge application of the laws at their convenience” ignores the fact the courts have long held the sincerity of belief may be examined. For example, when People are found to be in possession of marijuana, They sometimes assert They belong to the “Church of marijuana” in such a cynical attempt and those claims are, understandably, dismissed and convictions are upheld.

    The charge of a “religious opt-out seemingly available to anyone, any time, against any law” ignores the fact RFRA gives explicit limitations to such exemptions. The false choice of “But how else, other than through a sacrifice of privacy, will a governmental official know in advance that a law does not apply?” ignores the fact the very structure of RFRA requires the claims to be raised on a case by case basis. Why the Author of the “dissent” insists on acting as if no homework was done in this area is unfathomable.

    The concern of “a limit to those individual rights” again ignores the text of RFRA. The statute explicitly provides such limitations; it is an act of the congress saying, “In these situations, We are relinquishing Our authority.”

    The complaint about “a shield against application of the laws” would be better made in 1993 during the debate over RFRA. If the Author has a time machine, enjoy.

    The assertion “We are a society governed by the rule of law” and worries over “the rule of law [beginning] to crack” are misapplied in the sense they are used in a clear attempt to evade application of the law, namely RFRA.

    The summary in “section E” is contradictory: “nothing in the Contraception Mandate does, forbid any of the Greens from personally abstaining from participating in Hobby Lobby’ compliance with the Contraception Mandate”; yet, “They may delegate compliance with the Contraception Mandate to someone else”, which is the very act to which the Greens object?!? The counting of layers of indirection, additionally, is a clear attempt to inject the Author’s preferred religious interpretation into the matter instead of providing a legal one and, again, ignores the Self insured aspect of Hobby Lobby. Meanwhile the Author’s own footnote undermines the “speech and persuasion” argument.

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  13. My apologies if this has been covered.

    Patrick: “It seems to me (and I’ve mentioned this before regarding this case) that Hobby Lobby has a preexisting deferential option. They can require, as a condition of their employment, that their employees not avail themselves of contraception.

    I mean, that’s there. It’s an existing ability. Again, BYU does this.”

    BYU is a non-profit organization with a religious affiliation, etc.

    Hobby Lobby is a for-profit corporation, which was a 100% voluntary and deliberate choice made by the Greens. This brings a host of advantages.

    (IANAL warning) Those two types of organizations are not the same under the law. If the Greens formed other types of organizations, they’d have a better case. They didn’t, because the corporate form they chose is a secular one.

    BTW, if Hobby Lobby said that all women employed there must sign an agreement to resign upon marriage (religious beliefs!), would that be legal? If they required non-white employees to sign a form waiving any redress for discrimination (religious beliefs!), would that be legal?

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