This is a follow-up to the "NOW's Dirty 100 List" thread at

http://exmormon.org/phorum/read.php?2,1213975,1213975#msg-1213975

Below is a link to the audio and text of the story reported by NPR's Nina Totenberg on today's Morning Edition.

http://thin.npr.org/s.php?sId=293956170&rId=3&x=1

While not Mormon specific, I think the U.S. Supreme Court ruling in this case could have some profound consequences beyond the particulars of the case itself. And Ms. Totenberg's report is very fair to both sides of this issue.

I cannot see a for profit corporation not affiliated with a religious institution being seen as having Second Amendment religious freedom rights.

The Greens, the shareholders of Hobby Lobby, live in the Oklahoma City area and are very religious.

I am concerned that if SCOTUS finds that Hobby Lobby, Inc. has the fundamental Second Amendment rights, corporations may become able to peddle religions to their employees, require employees to practice a religious belief, etc.

Odell:
While I share your concerns, I must make a gentle correction that religious freedoms are protected by the First Amendment of the U.S. Constitution (the Second Amendment deals with gun rights).

Thanks for the correction! I live in Oklahoma City where the Second Amendment is a way of life.

Edited 2 time(s). Last edit at 03/25/2014 05:38PM by steve benson.

Let me first state that I am as pro-choice as they get. However, I believe that as a matter of constitutional law, Hobby Lobby should win this case. The Supreme Court ruled in Citizens United that unions and corporations (not just individuals) have a first amendment right to speech. I don't see any difference here--they will find that business owners and their corporate entities have a first amendment right to the exercise of free religion. There is a balance in weighing competing rights -- the government will have to prove that there is no other alternative available other than infringing on the business owner's constitutional rights in order to achieve a compelling state interest. Here, there are numerous alternatives, in fact alternatives created by the government itself -- the exchanges. A person may choose to go the exchanges and buy coverage that includes the birth control methods that Hobby Lobby opposes. The law as drafted forces Hobby Lobby into an all or nothing--provide the government-mandated coverage or no coverage (and pay a per employee fine that is frankly less than the insurance premiums). Hobby Lobby wants to offer its employees good insurance and has for years provided very good insurance to its employees. To win this case, the government must prove that there is no less restrictive means of providing access to birth control insurance othen than infringing on Hobby Lobby's first amendment rights. I don't see how they do that. One easy solution is to allow an individual employee to opt out of the Hobby Lobby insurance and go to the subsidized exchange if that is what they choose. Remember, this is not an abortion issue or even a birth control access issue. This is simply who is going to be forced to provide it and pay for it--and can the government infringe on a CONSTITIONALLY protected right to shift that to individuals and corporations when it could and is doing it itself in other circumstances. The federal government has for years passed laws that restricted federal monies from funding abortions--because there are other alternatives, as is the case here. I think this case is much ado about nothing and is just another example of a poorly drafted law that was not fully vetted and figured out prior to it being passed.

Can you point me to the section of the constitution and it's amendments which lays out and details the protections and rights for corporations?

If Hobby Lobby wins their case, what other control can they take over their worker's compensation? Insurance is part of an employee's compensation package. If they can refuse to allow an employee to use their insurance to get birth control, can they also refuse to allow their employees to use their paychecks to buy immodest clothing? porn? r-rated movies? beer? questionable music? gifts for gay friends? It's all paid for by them, shouldn't they have the right to approve how that check is used? Puhleez tell me no they don't have that right, and they don't have the right to control how their employee's insurance is used either.

you can't purchase one on the exchange, at least not get a subsidy on the premium.

I find your arguments non-compelling. In the entire supreme court canon, there isn't a single decision recognizing that for profit corporate businesses have free exercise rights under the First Amendment. If I had to venture a guess, it would likely be that until this day and age, it was considered an argument so specious that it didn't even merit a hearing.

The entire purpose of the corporate business model is to shield the principals from personal liability for business transactions. The legal fiction of corporations as juridical persons were created to this end. If you find that that the religious beliefs of the principal shareholders transfer to the fictitious corporate person, you implicitly find that little to no factual separation exists between the principals and the corporation, and you've just green lighted personal liability for any actual harm an employee or third person suffers from the corporation's exercise of its "religious rights".

You further throw open the doors to a parade of horribles where every section of the US Code and Code of Federal Regulations is subject to challenge on the basis of violating corporate "religious beliefs" somehow and somewhere, and the petitioners admitted as much during oral argument. In the cases of large, publicly traded companies, you'd also have to put the SCOTUS in the position of making decisions on the sincerity of corporate "religious beliefs" based on the views of a large body of shareholders, something the High Court has always been loathe to do.

Not mention, it's completely at odds with prior SCOTUS rulings in Employment Division v. Smith (1990), and United States v. Lee (1982).

. . . the High Court would not have granted it a hearing.

As to case law, the U.S. government's position includes citations invoked to justify its reasoning for compelling Hobby Lobby to follow the mandates of the ACA:

" . . . [I]n 1990, . . . the Court ruled that as long as a generally applicable law — that is, a law that applies generally to all citizens — is neutrally applied, it is constitutional, even though it may have some unhappy consequences for some [religious] believers. . . .

"The government [argues] that when you are a commercial enterprise [as is the case with Hobby Lobby], you may have to make choices. Here, either provide the insurance or pay a fine and let your employees go to the health care exchange to buy insurance that may include public subsidies.

"The Justice Department cites as an example a Supreme Court decision involving an Amish cabinetmaker. He was required to pay Social Security taxes for his employees, even though he viewed such payments as against his religion and even though the Social Security law at the time had significant exemptions. . . .

" . . . [T]he government, not[es] that the Centers for Disease Control and Prevention says that the availability of contraception is a matter of public health 'necessity.' The government points to studies that have shown one-third of women would change their method of contraception if cost was not a factor and that the most effective methods are the most expensive. IUDs are 45 times more effective than the pill, given average use, and 90 times more effective than condoms. But IUDs are also the most expensive method, costing between $500 and $1,000 in one lump sum.

"The government also argues that requiring effective contraception and counseling in insurance plans is justified as a matter of gender equality.

"'For an employer to say, I will cover all the basic essential health needs for men, but I am picking and choosing for women, and I am simply going to take out contraception or specific forms of medically approved contraception, it is sex discrimination,' says Marsha Greenberger, co-president of the National Women's Law Center. It is sex discrimination, she argues, because such selectivity regarding an essential part of women's health care costs forces women to pay more for their care."

"The Hobby Lobby corporation and its owners counter that the simple answer to these arguments is to have the government pay for contraception.

"The government replies that is no answer. Otherwise, the government would end up paying for everything."

("Hobby Lobby Contraceptive Case Goes Before Supreme Court," by Nina Totenberg, 25 March 2014, at: http://www.npr.org/2014/03/25/293956170/hobby-lobby-contraceptive-case-goes-before-supreme-court)



Edited 5 time(s). Last edit at 03/25/2014 05:59PM by steve benson.

I was denied insurance payment for my birth control pills but I was taking them under doctor's orders for a non-birth control physical problem. I had a hormone imbalance and the birth control pills helped control the problem. I wasn't even having sex.

There are a lot of reasons for a woman to use birth control to protect her life and health that should have nothing to do with anyone but herself and her doctor.

If an employer wants to enforce his religious/moral beliefs on his employees then he should only hire people with the same religion/moral beliefs. LDS, Inc. tries to do this by forcing employees to have temple recommends. If you go into a job knowing you will be controlled in this way then it's one thing. But to have someone else's beliefs forced on you without knowing is another thing.

I thought job discrimination based on religion was illegal. So why isn't it illegal to discriminate against employees with regard to health care? That's even worse.

I once had such an insurance plan, but it was a little-known secret that your doctor could provide a statement that you were taking them for a medical diagnosis and the insurance would then cover them.
Since then, I've lived in WA where insurance must cover them like any other prescription drug.

Yes! that's called 'Off-Label', and doc's use it 'every day'!

and widely- used, I don't see why it should even be considered off-label. The accompanying literature even includes it in "indications".

I'm also one who got on birth control for other medical reasons, and I wasn't even having sex at the time. One nice thing about not living in a red state is that my insurance covered it, and now with Obamacare, there's no more copay every month.

I've got the same situation. I would bleed heavily for 60 day. Finally I got perscribed a very specific type of birth control pills. They were not covered by my insurance and they ran almost $100 for 30 days. It's crazy.

My new ObamaCare insurance covers it with no co-pay.

if you had submitted a diagnosis to the insurance company.
Now you are getting it with no co-pay even though you're not even using it for birth control.

'Freedom from Religion" says that Gov't can't mandate religious doctrine/practice; it DOESN'T SAY that private corp's can't, Witness ChruchCo requiring that all employees have TRs.

A bad decision here could have the effect of loosening controls on Corps such as Hobby Lobby.

Establishment Clause: Congress shall make no law respecting an establishment of religion...

Exercise Clause: ...or prohibiting the free exercise thereof.

The ACA is not a law that establishes religion and it has not prohibited somebody from exercising their religion. The reason, IMHO, that SCOTUS took the case is to shut everyone up about the issue.

To borrow something I saw this morning. This is like demanding that no one can have a doughnut because I'm on a diet.

I am in utter shock that we are back to this topic and its 2014, not 1950!

Fortunately, we'll have smart lawyers and smart judges that will analyze the law based on well-established precedent, rather than emotional arguments about whether someone should give me something even if it is against their constitutionally protected beliefs. This isn't a question about abortion or birth control. They are both legal and available. This isn't a question about access, anyone who wants to pay for it can get it. This is ONLY a question about WHO is going to pay for YOUR birth control. I love how everyone all of a sudden is up in arms that Hobby Lobby is challenging a practice that has been the NORM since forever. Companies didn't even have to provide health insurance as a benefit before Obamacare; rather insurance was one benefit it would use to lure good employees. And the coverage could be crafted however the employer wanted it to be. Obamacare wasn't passed based on the loud outcry of the masses that it couldn't get birth control insurance; but rather, a segment of the country that could not get health insurance at all. We are a country that should be able to find a way to have everyone be able to obtain health insurance, so something needed to be done. But there were many ways to approach it. Obamacare was just one.

So with that backdrop, to all those that think "corporations" aren't individuals and don't have constitutional rights, you're wrong. As I said in my original post, the Supreme Court in Citizens United has ALREADY RECOGNIZED that corporations, not just individuals have first amendment constitutional rights. This is based on the reasoning that corporations are a legal fiction and are simply a combination of one or more individuals. Thus, federal law limiting political finance expenditures has to bow down to the corporations' first amendment rights to free speech.

Second, you all are ignoring the real question at issue. The question is not, is it fair to impose the business owner's religious beliefs on his/her employees. Rather, the question is whether this federal law (one that does NOT involve constitutional rights, i.e., you don't have a constitutional right to have birth control covered in your health plan) trumps the business owner's first amendment constitutional rights. The default is generally always that a constitutional right trumps, because that right rises to such a significant level. So here, the issue is that an owner has an undisputed religiously-held belief that certain forms of birth control are unacceptable. Can the government nevertheless FORCE a business owner to provide that birth control to its employees. The government cannot interfere with one's constitutional right unless (1) there is a compelling state interest AND (2) that the law achieves that interest in the way that is LEAST RESTRICTIVE to the exercise of that constitutional right.

Sometimes there is no way to achieve the compelling state interest without bending someone's competing constitutional right. Thus, if my religious belief is that I can't associate with/employ black people, and the federal law says that you can't discriminate based on race, there is really no middle ground. The anti-discrimination law trumps. Here, however, there are MANY middle grounds that protect a person's constitutionally protected religious belief (whether you think its stupid or not) and achieves the state's goal of providing free birth control. I gave one example: allow employees to choose the employer provided insurance or go to the subsidized exchange. Same cost to the employee. There are a million other "compromises" available that achieves the so-called "compelling state interest" (free birth control) but protects a constitutionally held right. Justice Kennedy suggested that the state could just pay to provide for it directly.

Kennedy will be the swing vote here. He raised several good questions for both sides in the oral argument. One was whether step one of the analysis has even been met: is there really a compelling state interest for mandating free birth control? After all, the government gave the exemption Hobby Lobby is asking for to religiously-affiliated nonprofits. Is the state's interest not so compelling for women working for those non-profits? Kennedy surmised that "It [the exemption] must have been because the health care coverage was not that important."

Personally, I think abortion and every form of birth control should be legal and available. But I hold our constitutional rights sacred, and even though I disagree with religions' views on contraception and abortion, I wholeheartedly agree with protecting constitutional rights to the greatest extent. If the government wants to provide free birth control, just provide it - there is no need to force the business owner to do it. This case could go either way, but I'm pretty tired of people acting all put out that the scope of the mandated coverage (including maternity coverage for men and 70-year old women) is some sacred cow that rises above fundamental constitutional rights we have in this country.

As opposed to the "fundamental right" of a for profit corporation being able to exercise religious beliefs, a concept that has zero history in the 200+ year canon of US judicial law?

Or as Justice Marshall said in the Dartmouth case:

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence."

Which part of Hobby Lobby's articles of incorporation mention its deeply held religious beliefs?

"Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."

*****

"If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax. The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief."

*****

"The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind, ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."



Kennedy joined the majority opinion in that case also. If they find for Hobby Lobby, I'm curious to see what logical contortions he and Scalia go through to disregard their previous holding.

Last post was to DeuxExMalcontent.

West Side - did you post your comment without reading the others? Because where do you get from what is at issue in this case that the business owner is limiting the religious rights of its employees. Do you not understand that what is at issue here is the federal government forcing a person to do something that is fundamentally against their religious beliefs. I don't care whether you, I or anyone else AGREES with that belief, it is CONSTITUTIONALLY protected. So there is a HIGH STANDARD the government has to meet before it can interfere with a person's constitutional rights. The question is has that test been met. If you read my other posts, you will see the side of the argument that says the test has NOT been met. All of the commentators are thinking that Hobby Lobby may come out the winner here. And guess what? If they do, their employees can STILL go get as much birth control of any kind and as many abortions as they want to get. Nothing about a victory for Hobby Lobby impedes that AT ALL.

Clearly you're not reading my posts,and continue to ignore the US Supreme Court precedent on this very issue, so I'm not going to waste space to cite it again. And seriously, why in the world would you think that "where in the articles of incorporation is the mention of a deeply held religious belief?" any sort of argument? Number 1, there is no requirement that proof of the religiously-held belief BE in the articles of incorporation, and number 2, there was no dispute by the government that this is in fact a deeply held religious belief by the private shareholders of Hobby Lobby -- it was not even a relevant issue in this legal dispute. Just another example of the uniformed trying to turn this into an argument that is NOT at the Supreme Court.

To find for Hobby Lobby, sitting members of the current court will have to reverse themselves sharply.

There is no individual constitutional religious exemption to neutral laws of general applicability. The existing case law holds quite the opposite.

*****
there was no dispute by the government that this is in fact a deeply held religious belief by the private shareholders of Hobby Lobby
*****

To which I would say, so what? The corporation is a separate legal entity from its shareholders for the purpose of shielding them from personal liability. It's the concept otherwise known as the "corporate veil". Their shares in hobby lobby are also held in Trust, with them as the beneficiaries, so at least two degrees of separation. So what the Hobby Lobby plaintiffs are asking, is for the Court to ignore the corporate veil, and the fact that their interests are held in trust, and transfer their personal religious beliefs to a sole and separate legal entity...

All while they get to enjoy the corporate veil protections from personal liability for any Hobby Lobby business activities.

A concept that has no support in any statutory or case law in the history of the Republic.

And for some strange reason, you keep puffing out your chest and crowing about what an obvious fundamental right is at play for Hobby Lobby.

So obvious that it's escaped the notice of the legislative and judicial branches of government since 1787.

I can kind of see this case going either way, and I can at least understand the rational behind the arguments of both sides. Unlike the anti-marriage equality crowd, who can't make a coherent argument that isn't directly tied to the government mandating religious belief.

That said, I hope Hobby Lobby loses. I don't want my employer forcing his religious views on me.



Edited 1 time(s). Last edit at 03/25/2014 10:18PM by forbiddencokedrinker.

Maybe the Jehovah's Witnesses would like to set up an insurance plan that will not cover blood transfusions. I mean, we don't want to violate their religious freedom by making them provide life saving medical procedures to anyone who might work for them.