Featured Post

Sebelius v. Hobby Lobby Stores, Part IV: Government’s Showing, Disposition

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. Part III of the opinion may be read here. Kowal, J.’s partial dissent and partial concurrence may be read here.

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

Because I find that the Greens have a right to challenge the mandate’s application to their businesses, I must also reach the question of whether the mandate constitutes a “substantial burden” on their free exercise rights, and whether the Government has asserted a compelling interest under RFRA for infringing the Greens’ free exercise rights. The burden seems unquestionably substantial, as the Government seeks to compel the Greens to choose between their religion and their business and, most importantly, seeks to compel them to directly engage in activity that violates their conscience.

As to whether the Government possesses a compelling interest, the Government has made the Court’s job quite easy. Under RFRA, the Government must demonstrate that the “application of the burden to the person (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling interest.” 42 U.S.C. § 2000bb-1 (emphasis added). By its terms, then, RFRA requires that the Government show not merely that it possesses a compelling interest for the policy, but that it possesses a compelling interest for applying the policy against the specific Plaintiff seeking relief.

Here, although the Government has asserted generally why it believes there is a compelling interest for the mandate itself, it does not appear to have even attempted to explain why it has a compelling interest in applying the mandate to the Greens specifically. While there may be circumstances in which such a generalized approach would be acceptable even under RFRA, it is an approach that is worthy of consideration only insofar as the Government seeks to apply the regulation at issue uniformly. Here, the Government has not chosen to apply its regulation uniformly, but has instead exempted a large number of employers from the mandate. In such a circumstance, it must present evidence why it possesses a compelling interest for declining to make those exemptions available to the Greens.

Although it is certainly conceivable that the Government could produce evidence to demonstrate that it has a compelling interest in this particular application of the mandate at trial, this case is before the Court on a preliminary injunction, and the Greens need only show a likelihood that they will prevail at trial. As the Government has, at this stage, made no attempt to show why it has a compelling interest in applying the mandate to the Greens specifically, this is a standard that the Greens are able to meet almost by default.

Thompson, J., was joined in this part IV 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 IV.

 

Likko, C.J., dissenting:

As described in my dissent from Part III of the Court’s opinion, none of the Respondents have articulated claims which confer an intrusion upon their right of free religious exercise under RFRA. Hobby Lobby has no religious beliefs with which to interfere, and the Greens have not been asked, as individuals, to do or refrain from doing anything at all.

What the Contraception Mandate requires is that Hobby Lobby comply with a law to which the Respondents have articulated a mere “generalized grievance.” This is insufficient to bestow standing on any Respondent. Hollingsworth v. Perry, __ U.S. ___, 133 S.Ct. 2652 2662 (June 26, 2013). To the extent that the Contraception Mandate does in fact compel a corporation to provide an abortifacient, Respondents and others who object to abortions should have been advised that they must resort to the political process to seek modification or repeal of the law as it stands today.

Having found to the contrary, the majority must proceed to address the second tier of questions under RFRA, those questions which occur after the burden of demonstration has shifted to the Government. The Government will need to demonstrate to the majority that the Contraception Mandate achieves a compelling governmental interest, and that it is narrowly-tailored so as to achieve that interest in the fashion most permissive of religious freedom possible.

I disagree with my Brethren’s reasoning on these questions only because they reached the questions in the first place. I suspect that had I found cause to address the merits of this issue, I would have joined this portion of their opinion. As I would find that the Greens necessarily fail to articulate an actionable claim, however, this portion of my opinion is not essential to my reasoning herein.

I would hold that no Respondent has stated a claim upon which relief can be granted. A corporation cannot hold a religious belief, and therefore cannot meet the first prong of the RFRA test. Insofar as this is the ruling of the majority, the majority is on solid ground.

But the individuals are not asked to do anything directly by the law, and therefore they cannot meet the second prong of the RFRA test. In finding that the individuals state a claim that a corporation they own and operate must act contrary to their individual religious principles, the majority plays with fire: they allow those engaged in commerce to invoke the corporate form when it is convenient to do so, and to set it aside when it is convenient to do so and then inject those non-human entities with all manner of exclusively human attributes. Today, that attribute is religion. Tomorrow, it might be love. The day after, it might be racial prejudice.

The potential for abuse is obvious, and we can only hope that modifications to the law in the future will tailor and curtail the bizarre idea that corporations are legally extensions of their owners rather than discrete entities.

Therefore, I would vacate the ruling of the Tenth Circuit, and remand the case to the United States District Court for the Western District of Oklahoma for dismissal of the entire matter with prejudice and further proceedings thereafter consistent with the law and the interests of justice.

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

 

Order of the Court:

The necessary order resulting from this opinion is that the decision of the Tenth Circuit Court of Appeals is affirmed in part and reversed in part. A majority of this Court finds that the Greens have established a likelihood of success on the merits, such that the injunction should be upheld pending trial of the matter.

The case is remanded to the United States District Court for the Western District of Oklahoma for further proceedings, including but not limited to dismissal of the claims of Hobby Lobby Stores, Inc. and Marden, imposition of a preliminary injunction against enforcement of the Contraceptive Mandate as to the Greens to the fullest extent necessary to give the fullest effect reasonable throughout all further proceedings, including as to the claims of all other parties, consistent with this opinion and the interests of justice. The Greens shall be deemed the prevailing parties as to the appeal through this stage.

It is so ordered.

 

Appendix:

I really, really want to thank Mark, Tim, Michelle, and Dave for going along with me on this project. They all did a ton of work, based on my flight of fancy. We all spent a lot of time reading the briefs, writing, and e-mailing one another trying to lobby for votes and flesh out our respective positions. Everyone worked with the kind of collegiality that we’d hope characterizes the real Supreme Court, and of course the disagreements reflected in these posts are very cordial. I hope we can do it again some time soon, friends. — Burt Likko

 

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.

Please do be so kind as to share this post.
Share

59 thoughts on “Sebelius v. Hobby Lobby Stores, Part IV: Government’s Showing, Disposition

  1. Damn. Why didn’t the majority pull a Roberts and decide the case based on the argument gummint should have made rather than the one they actually did? Ay-yai-yai.

    Burt: you’re right, the other activist justices are wrong. Take solice in knowing that in the court of public opinion your clarity and impartiality is noted and appreciated.

      Quote  Link

    Report

    • I thought about this comment for a bit, .

      I would acquit my Brethren of “activism.” Though I disagree with them, they chose the narrowest path to travel to reach the conclusion they found correct. They did not hold any act of Congress unconstitutional on its face, only the application of one such act unconstitutional given a particular set of facts. A court is not “activist” to rule in favor of any particular side or to strike down a law; doing so when necessary is the essential role of the court.

      “Activism,” to me, implies a self-directed agenda of policy making, particularly one that runs contrary to the expressed will of the democratic (small d) majority. In common parlance, “activism” means “something. Judge does that I dislike.” While many may dislike the ruling here (myself included) it is not the result of an unprincipled quest to find some way to whittle Obamacare to nothingness. My Brethren reached their conclusions in ways sincere and not outcome-predetermined.

        Quote  Link

      Report

  2. Here, the Government has not chosen to apply its regulation uniformly, but has instead exempted a large number of employers from the mandate. In such a circumstance, it must present evidence why it possesses a compelling interest for declining to make those exemptions available to the Greens.

    I do not agree with this at all, and would need evidence to convince me otherwise. The exemptions the government has made are for organizations who’s very entity is their religious belief; without that belief, the organization would not exist. This is not the case with Hobby Lobby; they can sell their business tomorrow and it would continue to function separately from their beliefs.

    Other ‘exemptions’ are not actual exemptions, they are extensions, and within a few years, all employer-provided health insurance will have to provide the same contraception benefits.

    Balkanization has an excellent post on the topic, Hobby Lobby Part IV: The Myth of Underinclusiveness

      Quote  Link

    Report

    • The thing is that the government didn’t make that case. While it’s absolutely true that the existence of exemptions by themselves doesn’t mean that there is a lack of a compelling interest, the problem is that the purpose of those exemptions and why the plaintiff at issue shouldn’t qualify for one still needs to be explained. The government can’t just say “the existence of these exemptions is irrelevant to whether we have a compelling interest in this case” and think that will be enough. That’s more or less what the government did here, though – they don’t really do much more than say “well, these exemptions have always existed, so they should be ignored.”

      Similarly, the government talks generally about why a contraceptive mandate is important – but it devotes very little to discussing why it has a compelling interest in these specific forms of contraceptives. Yes, they mention that these particular forms of contraception are either more effective than other forms or are important emergency contraception. But – unless I missed it – conspicuously absent from the government’s briefs is any discussion of the costs of those forms of contraception to employees, or how difficult those forms of contraception would be for employees to obtain without insurance coverage.

      Basically, they needed to show that, but for the mandate, a significant number of HL employees would lack meaningful access to these forms of contraception. I don’t think this would have taken much for the government to show. Particularly with the IUDs, I think this would have been quite easy for the government to show. In some of the other cases that are pending on this issue, it’s even entirely possible (maybe even likely) that they have shown this. But in this case, for whatever reason, they chose not to.

        Quote  Link

      Report

    • Generally speaking my interest in this whole project wanes if we’re going to use this tight limitation of only considering the arguments made by the parties specific lawyers in briefs even in our discussion of the legal merits in comments. What’s the point of getting into the various hypotheticals and fulsome arguments about what the compelling interest might be or etc. if it ultimately doesn’t matter at all if the parties didn’t make the same argument – even for the purposes of discussion?

      As far as issuing the Ordinary Court decision, if the justices feel they need to hew to that limitation that actual courts face, that’s fine. I don’t see the point in limiting the surrounding conversation, though. The people’s interest in any case of import at the SCOTUS bar is a consideration of all the important legal merits of the issues before the Court, not only the merits of the arguments actually made at court. The freedom and willingness to fully consider them all it seems to me is one of the things that makes this whole project of considerably more value to people than just reading the briefs and the decisions.

      Beyond that, I just don’t think it’s the case that SCOTUS actually does limit its consideration of cases as strictly to the arguments made by counsel as is being suggested. I could be wrong about that, but it seems to me they frequently consider various merits arguments made in the public (lawyerly) discussion and not always by the counsel in the case or amici when considering cases of great import.

        Quote  Link

      Report

      • Speaking for myself only here, on this particular part of the case, all that seemed relevant was the specific facts in this specific case. On the standing issue, I had no problem going outside of the briefs (and in fact I did). I don’t even have much of a problem going outside of the briefs to the extent we’re talking about whether there’s a compelling interest in the mandate generally speaking.

        But this last part of the case is extremely narrow because of the language in RFRA – the issue for purposes of this last part of the case is whether the government has a compelling interest in requiring this specific employer to cover these 4 specific forms of contraception. There’s not really much in the way of outside sources to consult on such a narrow issue, and certainly not much that I would have had the time to get around to.

          Quote  Link

        Report

      • We don’t have to limit ourselves thus in the future. This was our first time doing this, bear in mind; we’re learning from your feedback what you liked and didn’t like, and I appreciate the feedback. It may make getting the opinion a bit slower if we have to go out on our own beyond the briefs and we may never think of an argument one of you does, but that M&A be a price worth paying.

          Quote  Link

        Report

      • I didn’t mean to be overzealous in offering the critique. In fact, for the purposes of issuing the opinion, it probably will streamline things quite a bit to limit what is considered to what the parties argue. (Though considering more doesn’t have to extend to a duty to review every argument that’s out there… justices could just include whatever ones they come across that they find influence their opinion and call it good enough.) I’ve got no problem if we stick with that approach for crafting the rulings.

        It’s just once we get to discussions, I’d rather that the whole “but they didn’t make that argument in court” thing were to be dropped fairly quickly. We understand that the decision might only reflect that, but the comments don’t have to come down to a defense of the ruling that OC issued that’s highly shaped by which arguments were made in a court proceeding none of us have any influence over. We can just stipulate that the justices are limited to what was argued at court and their decision reflects that, but move on to a more inclusive discussion of the merits in comments, so that there’s a point to people who just want to think through the issues in an overall way doing so in the context of this project.

        The problem would be if that makes the justices feel that their considerable work on crafting the decision becomes slightly superfluous, which is why I say maybe we might want to consider opening things up in the actual deliberation process. But I’m okay with whatever the justices prefer to do on that score.

          Quote  Link

        Report

      • we may never think of an argument one of you does.

        Could you ask commenters to submit an amicus brief (is that the right term) to the Ordinary Court? That would address this issue and possibly cut down the amount of work needing to be done by the Justices in finding those other arguments.

          Quote  Link

        Report

      • I thought of that same suggestion just after I posted but I felt I was already being too suggest-y about this unambiguously awesome project as it was. So, thanks for making it. I think it’s a good idea.

        I would append the notion that commenters could either author original ones as you suggest, or just submit particular arguments from the public discourse that are germane to a case for consideration prior to judgement. Justices could have discretion about accepting submissions based on a judgement of relevance.

          Quote  Link

        Report

    • “The exemptions the government has made are for organizations who’s very entity is their religious belief; without that belief, the organization would not exist. This is not the case with Hobby Lobby; they can sell their business tomorrow and it would continue to function separately from their beliefs. ”

      This, one thousand times. ‘Hobby Lobby’ is a secular legal entity which in many ways is separate from the Greens (try suing them for the actions of Hobby Lobby, and see how fast the court bounces that suit).

        Quote  Link

      Report

  3. Mark, I’m a bit confused by your reasoning in this case. In the post on standing you said that initially you were inclined to deny standing to HL/the Greens but changed your mind for pragmatic reasons – that such a denial establishes a bad precedent permitting government to unilaterally determine when legislation either conforms (or fails to conform) with RFRA provisions. Yet, it appears that you decided the case in favor of HL on the merits, at least to the extent that gummint failed to make its case and that therefore Hobby Lobby actually did have legitimate claim regarding undue burden imposed by the contraception mandate. Maybe I’m misunderstanding the reasoning here, but I wonder how you moved from a merely pragmatic consideration to permit standing to deciding the case on substantive grounds?

      Quote  Link

    Report

    • Another way to ask the question: Am I correct in thinking that your first inclination to deny standing was predicated on the belief that HL hadn’t sufficiently argued that they incurred a burden under the contraception mandate, yet in the final decision you concede that they did?

        Quote  Link

      Report

      • I think you may have misunderstood my position. I’ll try to lay it out a bit more clearly.

        On the standing issue, it was a close issue for me not because of the issue of whether there was a substantial burden but because it was unclear whether individuals could ever assert standing based on a regulation directed at the company they owned.

        On this substantive issue, I honestly don’t actually have that much sympathy for Hobby Lobby. But the government’s arguments were so incredibly shoddy in my view, and the evidence it actually relied on so scant, that I thought they had failed to meaningfully refute Hobby Lobby’s arguments on the facts at this procedural stage of the case. I think the Government absolutely can present those arguments, and procedurally they still have an opportunity to do so. But – especially since this is so case-specific to Hobby Lobby – I don’t think it appropriate to rely on outside sources to define the government’s interest.

        I’m actually a bit surprised by the pushback on this point as compared to the general lack of pushback on the standing issue, if only because in our behind the scenes debates (and indeed as reflected in Burt’s dissent), there was basically a unanimous belief that the government had fallen short in demonstrating a compelling interest. The real debate behind the scenes was always over the issues of whether either the corporate entity or the Greens could have standing.

        Your comment above pretty much hit the nail on the head in noting that we based our opinion here on the arguments the government actually made rather than the ones it should have made. But I don’t think other groups should be able to define the government’s interest, especially when the policy at issue is a wholly administrative regulation – if the Obama Administration can’t explain why it has a compelling interest for its own decisions, then how is someone else going to?

        The substantial burden part of the issue was never really something that seemed up for debate. Had I seen Patrick’s point about how easily the Greens/HL could prohibit employees from using the contraception at issue, though, I may well have changed my mind on that part of the issue. I would need to think about that a bit more.

          Quote  Link

        Report

      • I’m actually a bit surprised by the pushback on this point as compared to the general lack of pushback on the standing issue, if only because in our behind the scenes debates (and indeed as reflected in Burt’s dissent), there was basically a unanimous belief that the government had fallen short in demonstrating a compelling interest. The real debate behind the scenes was always over the issues of whether either the corporate entity or the Greens could have standing.

        This troubles me greatly; so I want to dig into it. Can you explain why you feel the government didn’t make a compelling case? Because the law instructed the government to study and report on areas where there gaps in basic preventive care for women that impacted their health and well being; and IOM reported, with the recommendation. I read the IOM report, and it is compelling, and based on a lot of data from decades of research. I’m not sure that the government needed to go beyond that. Are you suggesting that the government needed to defend the report? That the contents of the report weren’t evidence?

        This is one of those places where I feel like I’m pounding my head against a wall; this notion that somehow, women’s reproductive health isn’t part of their overall health, and needs to be pointed out in an in-your-face sort of way instead of just acknowledged.

          Quote  Link

        Report

      • The “compelling interests” the government identified were gender equality and ensuring access to contraceptives. IMO, gender equality is an important, but not compelling, governmental interest.

        While there would be economic injustice, we would survive as a nation so long as women and men enjoy equal protection of the laws. Equal protection at the hands of private actors (again I think that is important and I endorse things like the Equal Pay Act) are not on the same level.

        Access to contraceptives is not a compelling governmental interest, either. The government must not ban them or restrict them so strenuously as to effectively ban them. But no one argued that without to Contraception Mandate, women who wanted these drugs could not get them, nor even that to do so would more than very moderately more inconvenient or expensive.

        As for making the argument that the Government should have made… That’s getting close to judicial activism territory, in my opinion. Maybe not crossing the line. But we tasked ourselves with weighing the arguments that were actually made, not the ones we would have made. That would have made this moot court.

          Quote  Link

        Report

      • See my response to you above. But just to be clear, the problem with the government’s case wasn’t – to me, at least – whether the government has a compelling interest in a contraceptive mandate generally. I think it clearly does.

        The problem instead was whether it has a compelling interest with respect to requiring these four specific forms of contraception be provided by this specific employer. From what I read in the briefs – and it’s certainly possible that we all missed something in those briefs since we don’t have an army of law clerks – the government didn’t even attempt to show how difficult it would be for HL employees to access these specific forms of contraception absent the mandate, nor did it even attempt to explain the purpose for the exemptions and why HL should be ineligible for those exemptions.

        That doesn’t mean that the government is unable to do that, and that’s why I tried to make clear that they still get another bite at that apple in the trial court – this isn’t intended to be a final ruling on the merits. It just means that the government thus far has failed to make those arguments.

        I said this a week or so ago, and I’ll say it again: I’ve been consistently underwhelmed by this Administration’s legal strategies in cases that should be very winnable for them. This is just the latest example.

          Quote  Link

        Report

      • Okay, , I’ve gotten pushback on that opinion before, and I know that as phrased it can go down the wrong way pretty easily.

        Would you buy, instead, “the Government failed to show how the Contraception Mandate was narrowly-tailored to advance the interests of gender equality while intruding only as minimally as possible upon the Greens’ religious freedoms?”

          Quote  Link

        Report

      • But no one argued that without to Contraception Mandate, women who wanted these drugs could not get them, nor even that to do so would more than very moderately more inconvenient or expensive.

        This isn’t necessarily true, though. If the contraception mandate were not to apply, and therefore the insurance plan offered by Hobby Lobby considered a qualifying plan, this then makes it difficult for individual women to purchase insurance on the exchanges.

          Quote  Link

        Report

      • Only moderately more difficult according to Burt – not enough to rise to the level of a compelling government interest.

        I’d be interested in a general review of the jurisprudence on compelling, important, etc. government interests. On its face it seems a standard that’s highly dependent on the policy preferences of the person doing the assessment (indeed, “compelling” references precisely a personal assessment of the magnitude of the interest – does it compel a person to support the government in pursuing it at some cost to liberty – whereas “important” at least references a measure that exists outside the assessment of a person).

        I’m sure that the standard has been defined so as to fill in this subjectivity over the years, though, and I’d be interested to hear from the lawyers what the term has come to mean as a matter of precedential definition. Does national survival really have to be at play for an interest to be compelling – is that how the term has actually come to be defined? My impression s that that is not the case.

          Quote  Link

        Report

      • IMO, gender equality is an important, but not compelling, governmental interest.

        I beg to differ.”

        Is racial equality a compelling government interest? That’s not a rhetorical question, but a legal one. While it’s clear to me that a government cannot promulgate and enforce laws that have differential racial effects unless it has a compelling government interest, it’s less clear to me that government has a compelling government interest–as the courts use that term–in creating racial equality. Maybe the courts have said so, and I’m just not aware, though.

        Conceptually I’m sympathetic to zic’s position (to whatever sadly limited extend I believe the government has a compelling interest in trying to effect any kind of equality), but legally I am skeptical. And I wonder if the disagreement between Burt and zic arises from Burt thinking of the phrase “compelling government interest” in terms of extant law and zic thinking of the term in a broader political context?

          Quote  Link

        Report

      • I really need to say: read the report.

        20% of women experience an unintended pregnancy that results in either an abortion (about 45%) or re-write life’s plan.

        In most of those cases, the medical care, prescriptions, surgical procedures, or cost are the reasons behind lack of access.

        That is in the IOM report. Failure to read that and comprehend it as compelling sort of boggles my mind. That’s 1 in 5 women.

        So the question should turn to the specific types of contraception HL singled out as a violation of their beliefs because they cause abortion. And the science of those medical treatments and the definition of abortion.

        Abortion involved a fetus already implanted in the uterine wall; these prevent implanting. The egg, without that home, is just an egg, washed out with the menses. They’re suggesting any interference with a fertilized egg = abortion; an attempt to redefine it.

        There is so much, on so many levels here, that boggles. First, the notion that someone else has some say over a woman’s uterus and eggs; second that a set of medical procedures are something different. But most of all, that the notion that women’s agency over her own body is somehow subject to other’s religious beliefs instead of her own.

          Quote  Link

        Report

      • James,
        respectfully, but I don’t think that racial equality and gender equality ought to be equal under the law. To the extent that the government does indeed have the right to punish attempted suicide, and using a similar rationale (government has an interest in ensuring that folks remain alive), the government ought to be able to compel limited gender equality… particularly in the area of health care.

        I don’t know how to express such an ideal with legal eloquence, and I can only hope that my comment will get across a bit of my reasoning.

          Quote  Link

        Report

      • points to something important here, which is the calling something a compelling governmental interest, or an important governmental interest, or a legitimate governmental interest, all affect when, why, and how the government may regulate to advance the interest in question. The prevailing legal standard for gender equity issues is that of intermediate scrutiny, which places us at the level of calling it an important governmental interest. For those who would read into my signing off on this classification as somehow disparaging of the rights of women, they are in mind that the antonym of “important” is “unimportant” and I do not think that gender equity is unimportant.

        As for the other issue of definition, I wrestle with this from time to time, because the actual definitions of these terms are quite vague. It could be that a compelling governmental interest really is something on the order of national survival or the prevention of violence. But it could be something else, and that something else, depending on how it’s defined, may very well turn out to include gender equity. That’s not my understanding of the objective state of the law right now, but I’m open to normative argument.

          Quote  Link

        Report

      • Zic, as near as I can tell it you are arguing about different things. You are making the case, compellingly, for women to have access to contraception but the others are not looking for that. They are asking why if exemptions that have been granted in other cases the government has a compelling interest in not granting one in this case.

        The argument is not should women have access to contraception, it is -given that we allow churches to limit access to their employees why is it unacceptable to allow religious business owners to do the same?

        As for public funding, of course it has to include funding for doctors. I fail to see why that is an argument against doing it.

          Quote  Link

        Report

      • Churches (places of worship) are already allowed to discriminate in hiring — in a way Hobby Lobby cannot — because they are part of the expression of faith. People who work for churches, temples, mosque, etc. are often members, and if they are not, understand that they have to comport with the standards of the organization.

          Quote  Link

        Report

      • Just to be clear here: I am arguing that the interest of employees outweigh the Green’s religious rights. It does not matter if there are two or (as in the Green’s case) 10,000. As women, their health-care needs are a compelling interest that should not depend on the Green’s beliefs.

        These bodies in question are the properties of these employees, the Greens purchase their labor, and the insurance the Greens provide is part of their wages. How each of those women opts to deal with her reproductive health is private. That health insurance will cover contraception is law, and is specific law because the need was unmet, putting women’s health and well-being in serious jeopardy.

        The burden is on the women so employed. It is not, “The Greens think this is a bad thing, is there another way to do it,” it’s that the Greens do not have the right to ask, on behalf of their employees, for an exception; it’s pushing the expression of their religion as a burden onto their employees. It’s a 1st amendment problem to me.

          Quote  Link

        Report

      • Hey Mark, thanks for the lengthy reply, which makes a lot of sense to me. On rereading my questions (which were a little confused in spots) I realized that they may have sounded as if I was making an accusation or pointing out an inconsistency when in fact I was pretty sure your reasoning on this stuff was opaque to me (as well as that I was confused about things). So thanks for clarifying.

        One other thing I’d like to say more generally, tho, is that one of the deficits I was operating under when evaluating all yalls arguments is that I haven’t read the gummints actual arguments supporting their contentions and claims. Given that, it’s no surprise to me that some of you kicked the whole mess back downstairs and made the arguments you did. And along those lines, I’m glad yall didn’t decide this case based on better arguments from either or both sides, arguments which could have been made but weren’t. If you did, I submit the exercise wouldn’t have been nearly as much fun.

          Quote  Link

        Report

  4. Interesting. Not the way I thought it was going to shake out after reading Part II.

    So to be clear to this non-lawyer; you’re remanding it back to the district level for trial on the merits with the understanding that the issue at trial is whether the CM violates the Greene’s rights as natural persons rather than the purported rights of Hobby Lobby the corporation?

      Quote  Link

    Report

    • That’s how the majority ruled. Figuring out what the majority here wants to do — enforcing the Contraception Mandate against the entities but also not against the individuals — will have to be the District Court’s problem. I’d have offered the District Court other guidance because I’ve no idea how to craft an order that threads that needle, but my opinion didn’t prevail.

        Quote  Link

      Report

      • Yeah, that’s basically my thoughts as to this. If I’m the district judge, I have zero Idea of how to apply this ruling both as to the corporation and to the Greens.

        Especially because the Greens are both shareholders and officers. Which interests are the courts protecting here?

          Quote  Link

        Report

    • Not the way I thought it was going to shake out after reading Part II.

      Me either. I’m especially puzzled about the math. Justices Likko and Togut were of the opinion that HL didn’t have standing and J. Thompson only conceded standing on pragmatic grounds that weren’t specifically relevant to the case. Yet the final decision included two unprincipled activist ideologically driven politically browbeaten … uh … defectors from that view.

        Quote  Link

      Report

  5. the least restrictive means of furthering that compelling interest.

    Are we at least all in agreement now that the above means publicly funded contraception? Or would some disagree with that assertion?

      Quote  Link

    Report

      • Yeah, I pretty much have to agree with this.

        “You can only do this that way

        “Well, we don’t find that way an acceptable alternative”

        I think that usually ends in “We’re done here.” I’m not convinced that isn’t the proper place to end.

          Quote  Link

        Report

      • …It’s worth pointing out that least restrictive means are only required if there is a substantial burden on free exercise (and the entity seeking relief qualifies for protection under RFRA and etc.). So that’s probably why this question, which might seem fairly clear-cut to some, nevertheless wasn’t such a big part of the arguments at court or in public about this (though of course it was there by all means).

        (It took me a second of wondering why that wasn’t *the* main topic of argument at the court on this, and then had a Duh moment when I remembered what I was forgetting.)

          Quote  Link

        Report

    • To clarify, my question excludes both political feasibility and legal necessity. It is not a question about whether we can or must do public funding, but abstracted away from those questions of practical application, whether public funding is conceptually the least restrictive means of providing universal access to contraceptive care.

        Quote  Link

      Report

      • I don’t think this works,

        Most forms of contraception really do require a doctor’s oversight, so it’s not just a matter of gov’t paying the pharmacy to give the stuff out for free. IUD’s need (which are not probably the safest and most effective) have to be surgically implanted and removed.

        It’s not just ‘take a pill,’ if it were we wouldn’t have much issue here.

          Quote  Link

        Report

      • I find your argument persuasive even though I can see why others might not. My remaining question would be if those exemptions for churches are needed? If the church employees are believers they won’t take the contraception anyway and if they would take it your point about imposing religious views on other people’s Bodies Surely still applies.

          Quote  Link

        Report

    • Well… maybe. It works for me, and it works for you, and it works for most folks here, but there’s a bit of a problem lurking there.

      This whole thing is predicated on the belief, accurate or not, that certain forms of contraceptives are abortifacients. Federal law prohibits Federal funding of abortions. So is your remedy even available, even putting aside the intractability of the politics for the time being? Would it just be a setup for more lawsuits?

      I think it’s kind of sweet the way you assume there’s a path to a satisfactory resolution here. But I’m afraid the only resolution that one side will find satisfactory is, “We win; fuck you.”

        Quote  Link

      Report

      • I’m really surprised there has not been more discussion of this issue. To prepare the opinion, we all took the claim of the greens at face value. I looked into the science a little bit, but not enough that I would feel comfortable agreeing with them. I think within the context of their expressed beliefs, I could find that as a matter of moral caution, they could have believed that these drugs are sometimes abortifacients because there appears to be some degree of scientific support that the drug can cause a fertilized egg to slough off of the uterine wall. That ceases to be the prevention of the egg being fertilized, and becomes, technically, a miscarriage. I would agree that a drug which induces a miscarriage could be considered an abortifacient. I would also agree that reasonable people might disagree about that: one might think the pregnancy begins not at fertilization, but at the implantation of a fertilized egg on the ball of the mother’s uterus. For purposes of evaluating the religious rights of the greens, I felt bound to assume the strongest case possible.

          Quote  Link

        Report


      • I could find that as a matter of moral caution, they could have believed that these drugs are sometimes abortifacients because there appears to be some degree of scientific support that the drug can cause a fertilized egg to slough off of the uterine wall.

        There actually is not any scientific support for that, nor does there appear to be any way such a thing could plausible happen. That entire assertions appeared in a *false* claim originally put forward by contraceptive companies in the 70s, that had literally no support, medically, and was quickly recanted. It was taken up by crazy anti-contraceptice lunatics who wanted to make contraceptives appear worse.

        Hormonal contraceptives stop ovulation. They do this by mimicking pregnancy. They do not do a single thing to a fertilized egg, because *pregnancy itself* doesn’t do anything to stop egg fertilization. We know this because it is entirely possible for women to *get pregnant* even after they have a fertilized egg. (That’s what fraternal twins are, after all.)

        The *only* reason that already-pregnant women do not end up with added extra embryos halfway through the pregnancy is the lack of them releasing eggs. Pregnancy, or fake pregnancy hormones, do not, in any way, shape, or form, stop implantation. Period. End of story. This is all insane fairy-tale land nonsense.(1)

        Even *Plan B* works this way. Plan B is an emergency level of hormones to *immediately* stop ovulation, and it works because the fact is that fertilization works somewhat backwards than people think…sperm doesn’t met egg halfway down, sperm goes in and sits there for a bit, and egg runs into it.

        1) In fact, hormone birth control, considering it can stop or reduce menstruation (Like tri-cyclen and others), can actually makes it less likely an implanted egg will be ‘flushed out’.

          Quote  Link

        Report

      • To explain a little farther:

        The idea that ‘pregnancy hormones causing lack of implantation or the fertlized egg to slough off’ is idiotic. Women are *supposed* to have those hormones while pregnancy, and in fact they *stop* menstruation. A women on birth control is, *hormonally*, pregnant.(1) That is why it is prescribed for acne and whatnot.

        Hell, they sometimes prescribe these ‘birth control’ hormones during in-vitro fertilization to make sure everything is ready for implantation. They have literally the opposite effect of ending pregnancies.

        It just works as birth control because of the very happy side effect that women who are ‘pregnant’ do not ovulate, and thus can’t *become* pregnant. (Which is why female hormonal birth control was so easy to invent…it’s a natural state, there’s a switch in women’s bodies to turn off ovulation during pregnancy. And why male hormonal birth control is so hard to invent.)

        1) Erm, at the base state of pregnancy. Actual pregnancy tends tn introduce a lot of other hormones also

          Quote  Link

        Report

  6. Burt, so what? IANAL, but from what I understand that under current law, paying for abortions can not be made mandatory. The owners of Hobby Lobby are asserting that they *believe* that A is B, and that since requiring them to pay for B is not lawful, they should be granted a waiver from paying for A.

    My question is – where else can somebody do this? Where else can somebody say that since they believe that A is B, the government must act as if A were B?

      Quote  Link

    Report

    • That will be a matter for the District Court to take up. If my cursory look at the science turns out to have npbeen reports of well-publicized untruths (as suggests, supra, then paying for plan B is not paying for abortions. Nothing in the record I reviewed offered any substantial guidance on whether this is a disputed fact or not, so I took the Greens at their word because the legal analysis is based on belief and there appeared, on the briefs, to be room for that belief to congrue with fact.

      Personally, I would not say that a belief is held in good faith when it is obviously false. Flat Earthers and geocentrists get little intellectual sympathy from me. But what should I do, as a judge, with a young-earth creationist? How far do I get to go with this before I’ve crossed the line into being disrespectful of religious belief? I can’t be a proper judge if I do, despite the fact that you’d be right to say that I also can’t be a proper judge if I pretend that black is white or that up is down.

        Quote  Link

      Report

      • Burt: “…so I took the Greens at their word because the legal analysis is based on belief and there appeared, on the briefs, to be room for that belief to congrue with fact.”

        So? Let’s say that a party genuinely believes something. When is a court required to treat that belief (not the fact *of* belief) as a fact?

        For example, there are a lot of people (call them ‘militia guys’) who assert a variety of beliefs that the federal government has either far more limited powers than it customarily exercises, or that the federal government is illegitimate.

        Do courts treat those beliefs as facts?

          Quote  Link

        Report

      • Well, those are (likely erroneous) conclusions of law because all judges are lawyers as a result of the process by which judges are selected for appointment. Consequently, courts are inherently good at resolving the kinds of questions which are by definition legal (e.g., can the BLM seize cattle to enforce unpaid grazing fees).

        Courts are not so good at resolving questions of science since very few judges are also scientists. They need expert witnesses to provide information.

        But my last set of questions above are really normative, open-ended invitations for everyone to muse upon, rather than expressions of frustration or illustrations of the challenge facing the judge. I’m really interested — what do you think a good judge ought to do when confronted with people who have seemingly sincere beliefs in what a great many people assume to be counterfactuals?

          Quote  Link

        Report

      • I understand the problems judges face in showing respect for belief in situations like this.

        But.

        Women have been trapped by their biology forever. I’ve said this before, I’ll say it again; our voices are not in recorded history on this topic. At all. It’s all the words and opinions of men. To find what we might have thought or wished for or yearned for as a basic right to our own bodies, you have to look to the medicinal herbals, rife with plants used for bringing on the menses.

        At some point, this gets to a very basic right of women to have the dignity of their bodies; to not have them subject to someone else’s beliefs. But that’s such an ingrained habit, and reliable contraception is such a novel thing, that it’s hard to recognize for the violation of women’s basic right to self. Those old habits hang on hard.

        So where do you draw the line? If you believe it, practice it in your own life. But my rights to the sanctity of my body are not subject to your beliefs; this is a violation of my bodily integrity. I think it rises to the level of illegal seizure of my uterus; and is protected under the 1st (Covey, placing a burden on women), the 4th, the 5th, and the 14th amendments.

          Quote  Link

        Report

  7. The “dissent” in this article has multiple flaws:

    First, the “dissent” repeats the erroneous claims of “none of the Respondents have articulated claims which confer an intrusion upon their right of free religious exercise under RFRA” which I disproved in the “Part III” article and will not reprove here.

    The dissent then describes the substantial burden as “a mere ‘generalized grievance’”, despite the fact the burden requires the Greens, the Hahns, Hobby Lobby, Conestoga Wood Specialties, Mardel, Autocam, et al., to engage in an action forbidden by Their faith, despite the definition of such burdens as “substantial” in United States v. Lee (1982), Hernandez v Commissioner (1989), Thomas v. Review Board (1981), and Sherbert v. Verner (1963).

    The dissent then ignores a key factor in RFRA: the government interest must not just be a compelling interest; the application of the burden TO THE PERSON BURDENED must be in furtherance of a compelling government interest.

    The dissent then reiterates the disproven notion corporations cannot exercise religion. The Church of the Lukumi Babalu Aye, O Centro Espirita Beneficente Uniao do Vegetal, and Hosanna-Tabor Evangelical Lutheran Church and School, each of which have successfully brought religious exercise claims before the Supreme Court and each of which are corporations, would be very surprised to learn, even though They had standing to sue, somehow They did not have standing to sue.

    The dissent then asserts another disproven statement: “But the individuals are not asked to do anything directly by the law”. How the dissent expects Hobby Lobby et al. to comply with the federal regulation if the Individuals in question do not the steps Their faith forbids is beyond Me.

    The dissent then presents a “parade of horribles” fallacy with the root cause being a failure to recognize, if People retain Their right to exercise religion when seeking a profit as Individuals (Cf., Sherbert v. Verner) and retain a right to exercise religion in concert with Others (Cf., every Supreme Court case where a religious organization has been a party), They clearly retain a right to exercise religion when seeking a profit in concert with Others. The fact They may “invoke the corporate form when it is convenient to do so, and to set it aside when it is convenient to do so” stems from the nature of religious exercise combined with the terms of the First Amendment while the liability limitation and taxation benefits of incorporation are statutory constructions which must adhere to the principles embodied in the United States constitution.

    The concerns about “Today, that attribute is religion. Tomorrow, it might be love. The day after, it might be racial prejudice,” ignores the fact RFRA requires such determinations be made on a case-by-case basis and the fact preventing injuries from such discrimination can only be prevented by telling Employers, “You may not discriminate on the basis of romantic relationships and/or race”

    The dissent then proceeds to call “bizarre [the] idea that corporations are legally extensions of their owners rather than discrete entities” when nothing could be further from the truth. Veil piercing happens, for example, in case of significant undercapitalization, intermingling of assets of the corporation and of the shareholder, siphoning of corporate funds by the dominant Shareholder, and when the corporation is used as a “façade” for the dominant Shareholder. My hunch is the Author of the dissent is not as well versed in corporate law as the Author thinks.

      Quote  Link

    Report

  8. Burt: “I’m really interested — what do you think a good judge ought to do when confronted with people who have seemingly sincere beliefs in what a great many people assume to be counterfactuals?”

    What have good judges *been doing*? Somebody claiming to sincerely believe something is not a new thing, no matter how many people supporting the Greens act like it is.

    For example, there’s a rancher in Nevada who claims that the USA either doesn’t legally exist, or has no power over him (I can’t recall off-hand the details of his delusion). The courts will definitely not treat that belief, no matter how sincere, as having any legal standing.

      Quote  Link

    Report

    • Adding on – Burt: “Well, those are (likely erroneous) conclusions of law because all judges are lawyers as a result of the process by which judges are selected for appointment. Consequently, courts are inherently good at resolving the kinds of questions which are by definition legal (e.g., can the BLM seize cattle to enforce unpaid grazing fees).

      Courts are not so good at resolving questions of science since very few judges are also scientists. They need expert witnesses to provide information.”

      However, judges also do that; they bring in experts and make decisions. This is not something fresh out of the labs.

      Also, something which nobody has actually engaged with (except with very bad arguments which even I know are not applicable):

      The Greens are not making a claim that these methods are actually abortions; to the best of my knowledge, they’d be home free if they (legally) were. The Greens are claiming that they *believe* that these methods are actually abortions, and that the courts should proceed as if they are.

      In short, that believing that A is B binds a court to act as if A had been found to *actually* be B.

        Quote  Link

      Report

Leave a Reply

Your email address will not be published. Required fields are marked *