Hobby Lobby or How I Chose God Over Country

[nathanm]

Much like the BC debate and framed in the same context, the exact same argument (actually an even stronger argument) can be made for employer financed grocery programs.  Why should the purchase of birth control be any more of a responsibility of an employer than food?

Why should a kidney transplant be the responsibility of an employer? Oh, right, it's called health insurance.

[Red Arrow]

Why should a kidney transplant be the responsibility of an employer? Oh, right, it's called health insurance care.

Some of the stuff you all are squabbling over, I can afford.   I want someone to buy my avgas. 

[guido911]

Why should a kidney transplant be the responsibility of an employer? Oh, right, it's called health insurance.

And there you have it--as sad as it is. Your employer is responsible for your having a kidney transplant. Not you, not your family, not even government. For all you non-employers out there? One less responsibility you have, and being shouldered by the evil 1%.

[Red Arrow]

Why should a kidney transplant be the responsibility of an employer?

Because employment causes kidney disease.
http://www.webmd.com/a-to-z-guides/understanding-kidney-disease-basic-information

[nathanm]

And there you have it--as sad as it is. Your employer is responsible for your having a kidney transplant. Not you, not your family, not even government. For all you non-employers out there? One less responsibility you have, and being shouldered by the evil 1%.

That was an excellent effort at missing the point! Your employer is not responsible for your kidney transplant. The health insurance they pay (part of) the cost for is. I'm not sure why this becomes so difficult to comprehend when the insurance company is paying for hormonal birth control.

[heironymouspasparagus]

And there you have it--as sad as it is. Your employer is responsible for your having a kidney transplant. Not you, not your family, not even government. For all you non-employers out there? One less responsibility you have, and being shouldered by the evil 1%.

Deflect alert!!!

Come on, guido!  You, as an employer know that you "count" that as part of the total compensation package!  Every corporation I have ever worked for did that, too!  From small, 35 people places to big 150,000 + places.  That extra cost is counted against the paycheck that an employee gets.  The only difference is that the employer handles the disbursement for all employees to one insurance company.  Very much the most efficient way to handle that.  Otherwise, the hourly rate of pay going onto the W-2 would be that amount larger to account for the difference.  Or you could just 'settle' for employees that you could get who were so unmarketable or under-trained that they would not contribute to the accomplishment of corporate goals.  How long have you run your own practice that you would not understand that?  Or are you just trying to dissemble??

[Teatownclown]

The never ending Fool's parade...wasting time and money....

MONDAY, APR 1, 2013 03:42 PM CDT
Tenth Circuit will hear Hobby Lobby birth control benefit appeal
The nine judge hearing may not bode well for employee rights or access to birth control, some analysts say
BY KATIE MCDONOUGH
http://www.salon.com/2013/04/01/tenth_circuit_will_hear_hobby_lobby_birth_control_benefit_appeal/

The United States Court of Appeals for the Tenth Circuit has granted Hobby Lobby's request for a full court hearing of its challenge to the birth control benefit requirement in the Affordable Care Act. And as Jodi Jacobson at RH Reality Check and Ian Millhiser at the Center for American Progress note, the nine judge hearing may be an ominous sign.

So-called  "en banc" hearings normally signal that a majority of the  justices disagree with the original ruling, which in this case was the December 2012 court decision to reject Hobby Lobby's claim that constitutionally-defined religious liberty empowers private employers to restrict their employee's access to birth control. On top of that, most of the appointees to the federal Tenth Circuit are conservatives, which doesn't bode well for employee rights or access to birth control, Millhiser contends.

As Millhiser writes:

Last December, a panel of the United States Court of Appeals for the Tenth Circuit denied a request from crafting retail chain Hobby Lobby, which sought to temporarily block Obama Administration rules requiring most employer-provided health plans to cover birth control. Hobby Lobby claimed that the religious liberties protected by the Constitution and federal law extend not only to a religious person's own conduct, but they also effectively enable an employer to restrict someone else's access to birth control by denying them benefits guaranteed by the law. The panel's decision rejected this argument.

Yesterday, however, the full Tenth Circuit agreed to hear the case in an unusual nine-judge hearing— a procedure known as "en banc." Typically, federal appeals are heard by three-judge panels, and this is especially true when no such panel has fully considered the case on the merits. The court's previous order concerned a preliminary motion seeking a temporary injunction, not a final consideration of the case.

The court's decision to hear the case en banc is an ominous sign for women in the workforce. More often than not, courts of appeals agree to hold an en banc hearing only when a majority of the court's judges disagree with a panel's previous disposition of a case. Even if that was not the motivation behind this particular decision to en banc this particular case, the fact remains that 6 of the Tenth Circuit's 10 active judges are Republican-appointees (although one of the Republicans, Judge Jerome Holmes, is recused)...

The full Tenth Circuit's decision to hear the birth control case does not bode well for women's access to birth control.

Mard and David should learn what freedom from religion implies.

[Gaspar]

Hobby Lobby wins.

Tenth Circuit rules in favor of the Greens.
http://www.ca10.uscourts.gov/opinions/12/12-6294.pdf

CONCLUSION
I would (1) affirm the district court's denial of a preliminary injunction for Hobby
Lobby and Mardel on their RFRA claim; (2) conclude that the Greens have standing to  
assert their RFRA and Free Exercise claims; (3) reverse the district court's holding that
the Greens' RFRA claim is not substantially likely to succeed and remand for
reconsideration; and (4) affirm the district court's denial of a preliminary injunction on
the plaintiffs' Free Exercise Clause claim.

Finally, I concur that the Anti-Injunction Act does not apply to this case.

This opens the door for every business with a similar mission to challenge Obamacare.

[Townsend]

Hobby Lobby wins.

They don't have to pay the fines while it's still in court.

[AquaMan]

Too early to claim victory. This allows suits to progress. But yes, now every politically motivated, economically driven, fundamentally religiously based business will weasel the system. Its Fallin whirled where every problem is Obama/Obamacare in origin.

[cannon_fodder]

It means the Green's live to fight another day.  In a plurality the case was remanded to the district course for further determination on the merits as to whether or not the Green's should have an injunction while the matter is decided.  Now, the district court is strongly encouraged to rule that an injunction is proper and then hear the case – but not ordered to do so.

What you posted is the hypothetical holding of a single Circuit Judge dissenting in part and concurring in part.  The case has four written opinions.  The holding of the majority is:

"Accordingly, for the reasons set forth below and exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we reverse the district court's denial of the plaintiffs' motion for a preliminary injunction and remand with instructions that the district court address the remaining two preliminary injunction factors and then assess whether to grant or deny the plaintiffs' motion."

The entire ruling is here:

http://www.ca10.uscourts.gov/opinions/12/12-6294.pdf

The basic reasoning of the holding is this:
1.   STANDING
a.   The Green's have standing because they own several trusts and those trusts hold for the corporate entities Hobby Lobby and Mardel.
b.   Hobby Lobby and Mardel are "faith based companies" who have a for-profit religious mission.
c.   The Green's have sincere religious beliefs that pass through to their trusts and then on to the companies owned by their trusts.
d.   Individuals have a right to exercise religion, individuals can form organizations, religious organizations have a right to exercise religion.  Therefore, for-profit organization are people who can exercise religion.

2.   BURDEN ON RELIGION
a.   The Green's believe some forms of birth control = abortion.
b.   ObamaCare forces large for-profit business to offer those forms of birth control to their employees.
c.   Forcing a for-profit company to offer birth control violates the beliefs of the people who own the trusts which own the companies – because forcing them to buy insurance coverage including birth control is not simply a matter of compensation.
d.   The religious beliefs of those owners trumps the governments interest (having already decided standing).
e.   The interest of the employees to not have the non-religious employer force  the owners religion on them is not relevant because employees can buy their own insurance.

The majority does raise a good point which I previously over looked:  a kosher butcher operates a for-profit business that necessarily serves a religious function.  That person/entity would certainly have standing to challenge a law making kosher butchering practices illegal.  The law stops the principle activity of the business on religious grounds and I think it must face additional scrutiny to succeed (e.g., if the government could prove Kosher Butchers poses a substantial health risk to the general public or somehow violates other peoples civil rights).   

But I think that is a relatively narrow exception and it certainly doesn't apply to retailers whose principle activity is to sell crap to the public.  No matter how religious the owners are, the corporations principle activity is to generate profit by selling merchandise to the public and Obamacare does not hinder that function. The largest difference between Hobby Lobby and Jo-Anne Fabric is that the people who control the trusts which owns Hobby Lobby are more religious.  Therefore, they should have leave to disregard laws that dictate the operation of the business with which they disagree.  Mardel may have a better claim – but the law does nothing to stop or hinder the principle business activity of Mardel either.

The issues start with standing.  The Green's are prevented from making a personal claim because Obamacare does not make them do anything.  It is directing Hobby Lobby to do something.  Even ignoring the trust ownership (which they do entirely), the Green's lack standing under the Shareholder Standing Rule.  If a corporation and its shareholders have a common interest, the corporation is the proper actor as naming the individuals is redundant.  The ruling starts by ignoring the corporate distinction and continues throughout.

A corporation, even a family corporation is a separate and distinct legal entity.   Try suing Hobby Lobby, they will make sure to point that out to you if you name the Green's personally.  Even though they wholly own and totally direct the operations of Hobby Lobby, the Green family is not Hobby Lobby.  A corporation is a separate legal entity, one that has "no conscience, no beliefs, no feelings, no thoughts, and no desires."  Citizens United, 130 S. Ct. at 972.  The Court is imparting the beliefs of the owners to the separate and distinct entity – which is improper under 413 years of English and American Corporate law.

Free exercise jurisprudence has always drawn a distinction between institutions whose principle activity is religious, and everyone else.  For profit corporations have NEVER been held to have free-exercise rights before. Not in the 140 years of the Free Exercise clause nor in the 20 years of the RFRA.  Not Congress, the Supreme Court, or the State of Oklahoma has ever legislatively or judicially granted religious rights to for-profit corporations and the logic in the 10th Circuit's decision advocating such is flawed.  The dissent rightfully calls this a "radical revision of 1st Amendment Law and the law of corporations."

In addition to the standing issue , the lack of evidence, and the lack of precedent – the massive gaps in logic  will prove to be fatal.  The term "faith based company" has never been used in any precedent setting environment (statue, appellate court, etc.).   A company has never before been held to have religious beliefs – as pointed out above the Supreme Court has specifically said they do not have beliefs.  The leap in logic from "individuals can have religion and churches can have religion" to "for-profit corporations should too" is embarrassing.   Not to mention wholly distorting the intent, history, and jurisprudence of the RFRA – which, according to the legislative history, was never meant to expand the free exercise clause .

Even the holding finds flaws within itself –
How does the Federal Government judge which corporations hold sincere religious beliefs and thus stop for-profit entities from choosing the most profitable "belief."  Where is the line for corporations forcing their religious beliefs upon their employees?  If "person" in the entirety of Federal Law refers to individuals and corporations, how do we reconcile hundreds of incongruent laws?   If a new class of companies called "faith based company" is now created, are those companies exempt from any law the owners object to on religious grounds or must each be litigated?  Can the government regulate the behavior of "faith based companies" and still avoid "entanglement" with religion?  Can a church convert to a "faith based company" and distribute dividends to its founders?

The Free Exercise Clause and the RFRA are both designed and have always been held to protect the free exercise of religion by individuals and non-profit organizations.  This is clear by history, jurisprudence, and context.  Corporations are separate and distinct legal entities who do not have religious beliefs.   To impart the religious beliefs of owners unto their for-profit endeavors and by extension their employees without sound logic (which, I would argue, would exist for the kosher butcher) is in error.  For-profit corporations should not be allowed to disregard laws they do not like because of the owners' religious beliefs nor should owners of a for-profit corporation be able to force their religious beliefs on their employees.

[heironymouspasparagus]

Free exercise jurisprudence has always drawn a distinction between institutions whose principle activity is religious, and everyone else.  For profit corporations have NEVER been held to have free-exercise rights before. Not in the 140 years of the Free Exercise clause nor in the 20 years of the RFRA.  Not Congress, the Supreme Court, or the State of Oklahoma has ever legislatively or judicially granted religious rights to for-profit corporations and the logic in the 10th Circuit's decision advocating such is flawed.  The dissent rightfully calls this a "radical revision of 1st Amendment Law and the law of corporations."

In addition to the standing issue , the lack of evidence, and the lack of precedent – the massive gaps in logic  will prove to be fatal.  The term "faith based company" has never been used in any precedent setting environment (statue, appellate court, etc.).   A company has never before been held to have religious beliefs – as pointed out above the Supreme Court has specifically said they do not have beliefs.  The leap in logic from "individuals can have religion and churches can have religion" to "for-profit corporations should too" is embarrassing.   Not to mention wholly distorting the intent, history, and jurisprudence of the RFRA – which, according to the legislative history, was never meant to expand the free exercise clause .

Even the holding finds flaws within itself –
How does the Federal Government judge which corporations hold sincere religious beliefs and thus stop for-profit entities from choosing the most profitable "belief."  Where is the line for corporations forcing their religious beliefs upon their employees?  If "person" in the entirety of Federal Law refers to individuals and corporations, how do we reconcile hundreds of incongruent laws?   If a new class of companies called "faith based company" is now created, are those companies exempt from any law the owners object to on religious grounds or must each be litigated?  Can the government regulate the behavior of "faith based companies" and still avoid "entanglement" with religion?  Can a church convert to a "faith based company" and distribute dividends to its founders?

The Free Exercise Clause and the RFRA are both designed and have always been held to protect the free exercise of religion by individuals and non-profit organizations.  This is clear by history, jurisprudence, and context.  Corporations are separate and distinct legal entities who do not have religious beliefs.   To impart the religious beliefs of owners unto their for-profit endeavors and by extension their employees without sound logic (which, I would argue, would exist for the kosher butcher) is in error.  For-profit corporations should not be allowed to disregard laws they do not like because of the owners' religious beliefs nor should owners of a for-profit corporation be able to force their religious beliefs on their employees.

This seems to be a continuation of the re-definition of "corporation" started by the RWRE to make it a 'person'.  Corporations have already been held to have First Amendment rights to free speech.  Wouldn't seem to be that big a stretch - particularly for this Supreme Court - to extend religious beliefs to a corporation, also.  Even though it is a contrived entity, whose only basis for existence is by definition of state/federal law.

I'm not gonna be surprised if they get a brand new, big, fat redefinition of precedent here.....and yes, this is extremely radical.  And just another step on the path to theocracy that we have been running down.

[TheArtist]

This seems to be a continuation of the re-definition of "corporation" started by the RWRE to make it a 'person'.  Corporations have already been held to have First Amendment rights to free speech.  Wouldn't seem to be that big a stretch - particularly for this Supreme Court - to extend religious beliefs to a corporation, also.  Even though it is a contrived entity, whose only basis for existence is by definition of state/federal law.

I'm not gonna be surprised if they get a brand new, big, fat redefinition of precedent here.....and yes, this is extremely radical.  And just another step on the path to theocracy that we have been running down.

In instances like those they really need to consider the differences between "person" and "citizen".  They are not in all instances the same, and do not in all instances have the same rights.  Not all "persons", including corporations, have the right to vote for instance.

[cannon_fodder]

This seems to be a continuation of the re-definition of "corporation" started by the RWRE to make it a 'person'.  Corporations have already been held to have First Amendment rights to free speech.  Wouldn't seem to be that big a stretch - particularly for this Supreme Court - to extend religious beliefs to a corporation, also.  Even though it is a contrived entity, whose only basis for existence is by definition of state/federal law.

I'm not gonna be surprised if they get a brand new, big, fat redefinition of precedent here.....and yes, this is extremely radical.  And just another step on the path to theocracy that we have been running down.

The basic question you asked is why is a corporation allowed freedom of speech but not the free exercise of religion.  (1) The answer is most succinctly stated that  "[a]lthough [the Free Speech and Free Exercise Clauses] reside within the same constitutional amendment, these two provisions have vastly different purposes and precedents, and we decline to make the significant leap Plaintiffs ask of us without clear guidance from Congress or the Supreme Court."  Freedom of Speech and Free Exercise of Religion are two separate rights – the same logic does not apply.  Foremost among them:  corporations do not believe - but setting up a separate and distinct legal entity for the purpose of generating profit, protecting yourself from liability, and other benefits of that for-profit-entity you have to accept other things that come with it.  The entity is NOT you.

The dissent lays out the rest of the argument rather well:

(2) Hobby Lobby is not a religious institution. 
The owners may be very religious and the corporation may spend money on religious ads,  "but these alleged facts, though perhaps establishing a sincerity of purpose on the part of the Green family that is rooted in their faith, cannot alter the basic for-profit status of the two corporations, or otherwise place these corporations into a unique class for purposes of RFRA in particular, or federal or state law in general. Significantly, the majority, despite employing the unique characterizations of "faith-based companies' and businesses with 'a religious mission,' does not cite to a single source in support of this new legal category of for-profit corporation. . . . That is because it cannot."   Opinion of BRISCOE, Chief Judge,  at 6-7

(3)  200 Years of Free Exercise and RFRA law making and jurisprudence have consistently held that individuals and religious institutions have free exercise rights.  Not for-profit corporations.  For-Profit corporations  have always had some measure of free-speech and the same is codified in the constitution (freedom of the press, with "the press" a commercial enterprise even at the time of the founders [i.e. how Ben Franklin got rich]).

(4) Corporations are separate and distinct entities and have no beliefs of their own.
"The majority next states that it "cannot see why an individual operating for profit retains Free Exercise protections but an individual who incorporates—even as the sole shareholder—does not, even though he engages in the exact same activities as before." Maj. Op. at 40. The obvious response to this is that, in the latter situation, a new entity separate from the natural individual has been formed. The Supreme Court has clearly stated that 'incorporation's basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.' Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001). . . . and as I have noted, the specific purpose for which this new entity is created matters greatly to how it will be categorized and treated under the law. "Opinion of BRISCOE, Chief Judge,  at 18 – 19

(5) The Majority has no support for their argument.  The only citation they offer is O Centra which holds that a non-profit corporation in New Mexico which is owned by a religious sect has protection under the Free Exercise clause.  This is NOT a for-profit corporation.  Absent congressional intent, jurisprudence, or a logical argument – the contention must fail.

In sum, "there is no plausible basis for inferring that Congress intended or could have anticipated" that for-profit corporations would be covered by RFRA.  McQuiggin v. Perkins, 133 S. Ct. 1924, 1942 (2013) (Scalia, J., dissenting). The majority's conclusion to the contrary thus "amounts to a pure judicial override of the statute Congress enacted." Id.   Opinion of BRISCOE, Chief Judge,  at 14.

[swake]

I would be very much in favor of a constitutional amendment on defining personhood as a human. And that humans are the ones that have real constitutional rights and those rights include privacy.

Corporations, unions, political parties and the like are not people. They are made up of people with rights but they themselves as entities have no rights except those which are granted by law and are not constitutionally protected.

Further, legally I want no political donations from corporations or unions. PACs and Political Parties are ok as politically focused groups of people but donations can be limited and must be public and the groups themselves have no "rights".