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What’s At Stake In The Birth Control Mandate Cases

church-state-street-signs

Earlier this week, the Supreme Court accepted for review two cases involving the Affordable Care Act’s mandate that employer based health care plans provide coverage for pretty much all forms of prescription birth control, a decision that has been a source of controversy among religious organizations and employers with strong religious beliefs since the day it was announced. Indeed, over the two year period some 70 lawsuits have been filed nationwide regarding the mandate, the vast majority of them by for profit companies who owners have asserted that the mandate would require them to violate their religious beliefs. As has been noted in the many posts here at OTB that I’ve written tracking how the Federal Courts have dealt with this matter1, there’s been substantial variation in how the legal issues raised by these cases have been handled by the various courts that have ruled on the issue. To summarize those holdings, though, it’s roughly true to say that the Courts are just about equally divided on the ultimate issue in the case, whether an employer can be required by the state to provide coverage for contraceptives as part of an employee health care plan even if doing so violates their religious beliefs. Among those courts that have found that it does, there has also been a roughly equal split on whether the right in question belongs to the corporation or to the individuals, who are merely acting through the corporate entity of which they are the sole or majority owner. Assuming it gets past preliminary issues like standing, these are the questions that the Supreme Court will be dealing with when it hears the cases some time next year.

These cases raise several important issues, of course, ranging from the extent to which the state can dictate the terms of contracts between employers and employees, to the extent to which the owners of a corporation retain their Constitutional rights if they choose to do business as a corporate entity, to, of course, the issue of religious liberty. For Linda Greenhouse, however, who covered the Supreme Court for The New York Times for some 30 years before retiring in 2008, published a piece in the Times, the cases are only about one thing, sex:

The question of whether for-profit companies can claim a religious identity, one that exempts them from obeying a generally applicable law, is fully worthy of the attention the Supreme Court is about to give it. But to the extent that much of the commentary about the challenges to the Affordable Care Act’s contraception-coverage insurance mandate frames the issue as a debate about the rights of corporations – as a next step beyond Citizens United’s expansion of corporate free speech – I think it misses the point. What really makes these cases so rich, and the reason the court’s intervention will dramatically raise the temperature of the current term, lies elsewhere.

The religious-based challenges that have flooded the federal courts from coast to coast – more than 70 of them, of which the Supreme Court agreed on Tuesday to hear two – aren’t about the day-in, day-out stuff of jurisprudence under the First Amendment’s Free Exercise Clause: Sabbath observance, employment rights, tax exemptions. They are about sex.

As such, the cases open a new front in an old war. I don’t mean the overblown “war on religion” that some Catholic leaders have accused the Obama administration of waging. Nor do I mean the “war on women” that was such an effective charge last year against a bevy of egregiously foot-in-mouth Republican politicians.

I mean that this is the culture war redux – a war not on religion or on women but on modernity.

All culture wars are that, of course: the old culture in a goal-line stance against a new way of organizing society, a new culture struggling to be born. Usually, that’s pretty obvious. This time, somehow, it seems less so, maybe because the battle is being fought in the complex language of law, namely a 20-year-old law called the Religious Freedom Restoration Act.

This tendentiously named statute, aimed at overturning a 1990 Supreme Court decision that cast a skeptical eye on claims to religious exemptions from ordinary laws, provides that the government “shall not substantially burden a person’s exercise of religion” unless the burden serves a “compelling” government interest and is the “least restrictive means” of doing so.

(…)

There’s a powerful argument to be made, both in policy and law, that an employer of any faith or no faith who chooses to enter the secular marketplace can’t pick and choose which rules to follow. As some of the federal judges who have rejected the religious claims in these cases have pointed out, no employer would have the right to tell employees that they can’t use their wages to obtain contraceptives, abortions or any other legal product or service. By paying employees as the law requires, neither a corporation nor its owner is endorsing the employees’ choice of what to spend their money on – no more than a local government endorses a parent’s choice to use a taxpayer-funded voucher for religious-school tuition. The Supreme Court for decades has embraced the notion that an intervening private choice of this sort, even when a government program is clearly designed to channel public money to religious institutions, avoids what would otherwise be a violation of the First Amendment’s Establishment Clause.

So now, once again, the court will have the last word. A ruling against the contraception mandate won’t kill the Affordable Care Act – much as some justices might fervently desire that result. If the court grants the exemption the companies seek, its decision will most likely come packaged as an exercise in statutory interpretation. Only the old culture warrior, Antonin Scalia, can be counted on to acknowledge the deeper issues in play. But those issues will be there nonetheless, and that’s what makes these cases so compelling.

It is, of course, not surprising that Greenhouse would choose to characterize the issues in these cases as cultural rather than legal. Doing so tends to undercut the legitimacy of any of the legal arguments against the mandate and to turn the entire matter into just another battleground in a war that arguably began back in 1965 when the Supreme Court issued its opinion in Griswold v. Connecticut striking down a law against the sale of contraceptives to married couples that served as the launching pad for decisions on abortion, gay rights, and a whole host of other issues. Indeed, framing this as a cultural rather than a legal issue is to the advantage of partisans on both sides of the aisle (and have no doubt, Greenhouse is and always has been a partisan of the left side of the political aisle). For the right, the mandate is politically useful because it serves as evidence for what they have long claimed is a government war on people of faith. For the left, it’s politically useful because it serves as a convenient example of the supposed efforts of people of faith to force their religious beliefs on society as a whole. As a matter of law, though, these cultural issues are entirely irrelevant and, as someone who covered the Court during the time went it dealt most prominently with many of these issues, as well as several prominent religious liberty issues, Greenhouse really ought to realize that.

As Ann Althouse points out, characterizing the cases at issue as being “packaged as an exercise in statutory interpretation” in the dismissive manner that Greenhouse does in her piece is quite absurd, because that’s exactly what these cases are in the end. While at least one of the cases that the Court has accepted includes claims that the mandate is a direct violation of the Free Exercise Clause of the First Amendment, these cases are principally about a conflict between the PPACA’s mandate and the Religious Freedom Restoration Act (RFRA). The RFRA is, as I’ve explained before, a 20 year old law passed by Congress in response to the Supreme Court’s decision in Employment Division v. Smith in which the Court had decided that two Native Americans could be denied unemployment compensation after being fired for drug use, even though the drug in question was peyote and that it had been used in a Native American religious ceremony. Because of its far-reaching implications, the decision ended up uniting groups that were normally on opposite sides of the church-state divide, and support for the RFRA was largely bipartisan. Indeed, the principal sponsors of the RFRA were then Congressman Chuck Schumer and Senator Ted Kennedy, both of whom had a long and bipartisan list of co-sponsors for their versions of the bill in their respective Chambers of Congress. The bill passed Congress easily and was signed into law by President Clinton in 1993, who was a strong supporter of the law from the beginning. At its core, the RFRA states that religious liberty should not be “substantially burdened” by a generally applicable law absent a “compelling government interest.” At least as it applies to the Federal Government, the RFRA has been upheld by the Supreme Court and has been applied countless times by people and incorporated entities asserting that their religious liberties were being substantially impaired by what is otherwise a generally applicable law.

To argue as Greenhouse does that these cases are purely about sex and culture is, therefore, quite absurd. The Federal Government passed a law that includes a mandate regarding what employers must include in the health care insurance they provide to employers and certain employers are arguing that, in part, this mandate violates their religious beliefs. This is precisely the type of situation that the RFRA was intended to address, and the question for the Court will be whether or not the employers rights under the RFRA trump the Federal Governments authority as granted by the the PPACA. Indeed, as Althouse notes, Congress could have tried to pass a version of PPACA that excluded this mandate from being covered by the RFRA, but they did not do so. Since they didn’t it’s up to the Courts to decide how to reconcile these two particular statutes. To argue, as Greenhouse seems to, that this is an issue that the Court shouldn’t even bother dealing with because its so silly is absurd. There is a conflict between wo perfectly valid Federal Laws and its the Court job to decide how to resolve that conflict.

 Jazz Shaw, meanwhile, would like to see the Court address a far larger issue:

The question I would like to hear the SCOTUS justices ask the participants in this case is as follows: “Do you believe that the government has the power to tell employers how many days of paid vacation they have to offer their employees?

The Court, of course, is limited to deciding a case based on the facts and laws before it, so it’s not going to really reach an answer to that particular question even if one of the Justices asks the parties attorneys a question like this as a hypothetical question. While it is an important philosophical one, Jazz’s question would be more appropriate for a cast that attacked the legitimacy of the employer mandate to begin with. That type of case, of course, would involve issues arising under the Federal Government’s powers under the Interstate Commerce Clause and the extent to which those powers include the right to control the terms of employment. In that regard, it’s worth noting the Federal Government already does place certain mandates on this relationship when it comes to the hours of “regular” employment versus “overtime” for hourly employees under the Fair Labor Standards Act, employee safety under the laws the established the Occupational Health And Safety Administration, and, of course, a whole series of civil rights laws ranging from the 1964 Civil Rights Act to the Americans With Disabilities Act. Each of these laws has been upheld by the Supreme Court. Would the same be true of ObamaCare’s employer mandate? Given how the Court ruled on the Commerce Clause issues in the cases challenging the individual mandate, there would seem to be a good argument against that portion of the law, but until such a case gets before the Supreme Court we won’t know for sure.

These cases are not about sex, they are not about culture, and they are also not about women having the right to use contraceptives, principally because there is no such thing as a right to have the cost of your contraceptives covered by an employer-provided health insurance policy. Additionally, if an employer did decide not to provide coverage for contraceptives under an employee health insurance plan, or not to provide employee health insurance at all, there would be no legitimate legal claim that affected employees could make. In the end, when the Court rules on this matter, it’s going to rule on whether the employers rights under the RFRA are violated by the mandate that they provide birth control coverage. That is really the only issues in the case. These are important issues that the Court rightly ought to resolve. Additionally, as I’ve noted in my previous posts, there is significant merit to the religious liberty issues raised by the employers involved in these cases. To blithely dismiss them as Greenhouse and other commentators on the left have done is quite simply intellectually dishonest.

1 Previous posts highlighting the major developments on the birth control mandate and related issues can be found here, here, here, here, here, here, here, and here.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. wr says:

    Maybe it’s not about sex. It’s about power — the power of the wealthy to control the lives of the less wealthy, specifically in this case the power of employers to control the sex lives of their employees.

    The claim of “religious freedom” is of course ludicrous. My religious freedom is never threatened by my employees’ free exercise of any religious beliefs. (Unless their religion compels them to kill their boss…)

    And it’s obvious once again that to a libertarian, the definition of an abridgement of freedom is “something that personally inconveniences me.”

    Highly-rated. Helpful or Unhelpful: Thumb up 36 Thumb down 6

  2. Gustopher says:

    In the end, when the Court rules on this matter, it’s going to rule on whether the employers rights under the RFRA are violated by the mandate that they provide birth control coverage. That is really the only issues in the case.

    The Supreme Court has a history of sometimes issuing very broad rulings, so they may rule on quite a bit more than just contraception. I wouldn’t be surprised if they took on the question of when a legal construct such as an incorporated entity can even have religious views, or where the line between an exception for contraception and an exception for blood transfusions lies.

    Like or Dislike: Thumb up 2 Thumb down 0

  3. Tim D. says:

    Doug sez: “there is no such thing as a right to have the cost of your contraceptives covered by an employer-provided health insurance policy”

    IANAL but workers DO have rights. Female employees have the right to not be discriminated against in the work place. Based on that reasoning, it seems to me that the government DOES in fact have a “compelling interest” in mandating that birth control be included in employee health packages. I also don’t buy the idea that these businesses are “burdened” by the contraception mandate, but the discrimination angle seems central to me.

    Quoting from wikipedia: “In December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn’t provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. That opinion, which the George W. Bush administration did nothing to alter or withdraw when it took office the next month, is still in effect today – and because it relies on Title VII of the Civil Rights Act, it applies to all employers with 15 or more employees. Currently, employers that don’t offer prescription coverage or don’t offer insurance at all are exempt, because they treat men and women equal, but the new mandate will penalize such actions.”

    http://en.wikipedia.org/wiki/Contraceptive_mandate_(United_States)

    Like or Dislike: Thumb up 12 Thumb down 2

  4. al-Ameda says:

    This has nothing to do with religion or separation of church and state. I fail to see the nexus. A Birth Control Mandate does not compel any woman to use birth control if that is contrary to her personal religious beliefs.

    What I do see here is that 6 of the 9 Justices are Catholic, and 5 of the 6 are men, therefore I see a very strong probability for a 5-4 decision to further unravel the ACA.

    Again, this is exactly why employment and health insurance benefits coverage should not be linked.

    Like or Dislike: Thumb up 16 Thumb down 2

  5. @Doug:

    These cases are not about sex, they are not about culture

    In a technical sense, yes. However, the entire debate (and the statutes being contested) are, in fact, about sex and culture).

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  6. Rick DeMent says:

    Would then a business owned by Muslims have the right to compel their employees to follow Sharia law while at work, cover their heads, obey other tenants of Islamic religious law? I would love to see this SCOTUS rule on that.

    As a test I sent an email with a bogus story about a company doing that very thing to my wingnut BIL, and he responded telling me that no company had the right to impose their religious values on their employees. Apparently he had forgotten that he argued with me exactly the opposite over the birth control issue.

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  7. Ron Beasley says:

    My major complaint about this is it opens a real can of worms. Should a company owned by Christian Scientists be able to refuse to offer health insurance altogether?

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  8. michael reynolds says:

    These cases are not about sex, they are not about culture, and they are also not about women having the right to use contraceptives,

    You’re seeing this through lawyer’s eyes, but it’s just silly in this case. Of course it’s about sex and culture wars. The cases would never have been brought absent those factors. So dismissing them is wishful thinking at best. And it is naive to imagine that they will be decided purely on legal principles.

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  9. f.w. says:

    One point that is missing, I think, from the debate so far is the changes made by providers occurring in health care insurance and health care. I work for a hospital in the northeast. Recently, most of the hospitals in the region have changed their health insurance policies such that employees now must receive health care from the hospital that employs them. If they go elsewhere, there is a significant financial penalty for seeking care “outside of the system”. Hence, employers in this circumstance now control health care delivery as well as providing insurance coverage. So, if my hospital (my employer) refuses coverage of certain standard medications or commonly prescribed procedures, and they then make it financially onerous to obtain medical care elsewhere, what can I do? Quit? The hospital, as both the insurer and the deliverer of health care, amasses even more power to control what I can do because of restrictive economic factors. Imagine if an individual worked at a hospital run my Jehovah’s Witnesses. Can the employer refuse to pay for a blood transfusion? What if they felt HIV was God’s judgement on someone with the disease? No coverage? I can think of any number of situations where by my health care could offend the religious beliefs of my boss. If he/she is both insurer and the de facto provider (and limits my access to other providers via a financial penalty) that changes the dynamic greatly.

    Like or Dislike: Thumb up 10 Thumb down 0

  10. beth says:

    @Ron Beasley: Can an employer ignore the Family Leave Act if a gay employee adopts a child and the employer objects to gays adopting children? What if a gay employee needs to take time off to care for a seriously ill spouse? Can they deny an employee the right to cover their spouse on their insurance plan if they weren’t married in a church the employer approves of? It seems to me we’re opening a huge can of worms here so some men can try to turn back the hands of time.

    Like or Dislike: Thumb up 13 Thumb down 2

  11. @Ron Beasley:

    My major complaint about this is it opens a real can of worms. Should a company owned by Christian Scientists be able to refuse to offer health insurance altogether?

    This has occurred to me as well. How far should the religious objections of an employer be allowed to go? And a Christian Scientist who owns a business would object to far more than just contraception, yes?

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  12. legion says:

    The sole and entire reason the concept of a “corporation” exists is to create a legal entity _separate_ from the physical owners & operators of a commercial enterprise. Let’s say Joe Blow is the majority shareholder of Joe’s Widgets. If gramma gets hit in the head by a widget falling off of a poorly-stacked display, you can sue the corporation, but you cannot sue Joe personally. That’s the protection Joe gets from incorporating. By that same token, Joe cannot impose the same restrictions on hiring, etc. that he might if he were running a completely private company. You want the benefits of being a corporation, playing in the public marketplace? You live up to the responsibilities of the public marketplace.

    In short: f*ck you – play by the rules.

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  13. RWB says:

    A corporate entity is a legal person separate from the persons of the owners. This separation of persons is what gives owners of corporations limited liability. Saying that complying with the law violates the owners rights to free exercise of religion implies one of two possibilities. It is equivalent to saying that some other person, that is any other person complying with the law violates that owners right to free exercise, or it acknowledges that the persons of the owners and the person of the corporation are one and the corporate veil is pierced. This removes the limited liability for the owners. In my opinion, regardless of the outcome of the case, by making the claim the owners of Hobby Lobby have already pierced the veil and their personal assets are already placed at risk.

    Like or Dislike: Thumb up 9 Thumb down 0

  14. Ron Beasley says:

    @Steven L. Taylor: Drawing lines is always a slippery slope.

    Like or Dislike: Thumb up 1 Thumb down 0

  15. beth says:

    How exactly does the corporation Hobby Lobby exercise its religion? Does it go through the process of baptism, communion, confirmation? Does it get the Last Rites if they have a bad year? I just can’t see how corporations can claim to be existing under religious rules.

    Like or Dislike: Thumb up 16 Thumb down 2

  16. Stonetools says:

    I am afraid that the outcome of this case was predetermined when the Supreme Court elected George Bush president and he put two Conservative Catholics on the Supreme Court. There are now five of those on the court. Talk about court packing!
    And this case is not about sex the way the Civil Rights Act isn’t about race.

    Like or Dislike: Thumb up 12 Thumb down 1

  17. mike shupp says:

    The argument for including birth control drugs in medical insurance is that we do in fact treat birth control as a medical issue. I.e., women go to doctors for examination, the doctors give them prescriptions for the pills, which women take to pharmacies to be filled, one or two months worth at a time, and every other year or so women have to go back to those doctors for another examination to get the prescription extended. Which sure looks like medical practice to me. With medical sort of costs — you don’t get gynecological exams for ten bucks a visit.

    Now … is this strictly necessary? Or have we adopted the present set of rules just to make damned sure getting oral contraceptives is an elaborate and expensive procedure, to ensure that only the “right” sort of people get them — e.g., married women or post-adolescents? Because the world will go to hell if women just go around buying contraceptives as easily as modern males buy condoms. (Let’s remember that when these procedures were set in effect, buying condoms wasn’t all that easy either).

    So a suggestion: amend the laws, take away the necessity for a prescription to buy contraceptives, let them be sold over the counter like aspirin and chewing gum, to anyone at all. No proof of age, no picture ID. Just like condoms. Make ‘em cheap — and then we can drop them from the medical insurance business.

    And everybody’ll be happy. Right?

    Like or Dislike: Thumb up 9 Thumb down 2

  18. rudderpedals says:

    The RFRA is a dog’s breakfast, or the original sin. Pick your metaphor.

    Could someone splain why PPACA (or for that matter any law passed after RFRA) does not supersede RFRA when the newer law conflicts with the older RFRA?

    Like or Dislike: Thumb up 2 Thumb down 0

  19. Rafer Janders says:

    @legion:

    The sole and entire reason the concept of a “corporation” exists is to create a legal entity _separate_ from the physical owners & operators of a commercial enterprise. Let’s say Joe Blow is the majority shareholder of Joe’s Widgets. If gramma gets hit in the head by a widget falling off of a poorly-stacked display, you can sue the corporation, but you cannot sue Joe personally. That’s the protection Joe gets from incorporating.

    Yes, yes, yes. I was just going to write the same thing when I saw your comment. As you stated, the whole point of incorporation is to create a separate legal entity above and beyond the owner’s individual personhood. Now certain corporation owners want the corporation to reflect their own personal religious beliefs — but they don’t want personal liability at the same time. It’s an untenable position.

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  20. Rafer Janders says:

    @Ron Beasley:

    Should a company owned by Christian Scientists be able to refuse to offer health insurance altogether?

    Just as a point of fact, employers are not actually legally required to offer health insurance at all. They do so as another form of compensation. However, once they do decide to offer health insurance, they cannot do so in a discriminatory manner — they could not, for example, offer $10K of health insurance to male employees and only $5K to female employees.

    Like or Dislike: Thumb up 9 Thumb down 1

  21. JKB says:

    @rudderpedals:

    Because Nancy Pelosi and Harry Reid, not to mention Obama, didn’t write language into the ACA to modify or repeal the RFPA. If only they’d known what was in what they voted for. Not to mention honored the pledge to make the full text available for days prior to the vote.

    Oops.

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  22. rudderpedals says:

    @JKB: But does Congress really need to expressly repeal an old law conflicting with the new law? Bills would be endless if passage didn’t implicitly supersede conflicting bits of older laws.

    Like or Dislike: Thumb up 6 Thumb down 0

  23. JKB says:

    @rudderpedals:

    What would be implicitly superseded? The RFPA doesn’t prohibit the mandate, it simply says that the governmental interest must be compelling. All the ACA did was establish a mechanism for certain health services to be mandated for coverage. The law doesn’t even mandate the contraception at issue in many of these cases. The required coverage comes from bureaucratic regulation, i.e., a political choice above and beyond the legislative process, written and imposed by unaccountable government workers.

    But those government workers are subject to the laws passed by Congress. Congress said that some health care services can be mandated into offered health care policies. They also said, under Clinton, that the mandates of the federal government can not burden religious practice without a compelling reason and via the least restrictive means. So we have a conflict. On the one side, bureaucrats unaccountable to voters have chose to impose a practice that some citizens consider to be an undue burden upon their religious practice and without a compelling governmental interest or that it is not the least restrictive means to satisfy a compelling interest. The lower courts have not come to a consensus upon that conflict so now the issue is before the SCOTUS.

    And actually it is not bills that are endless but litigation. If Congress was clearer in their reasoning with new laws we’d have less. I suspect no Democrat wanted to explicitly state that they were repealing the Religious Freedom Protection Act, which had wide bi-partisan support and was eagerly signed into law by Bill Clinton as well as having already been challenged before the SCOTUS. Or as some tried to say about Obamacare, the RFPA was settled law. You can’t implicitly overturn settled law, although you can create conflicting statutes which end up needing the Supreme Court to sort out.

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  24. Rafer Janders says:

    @JKB:

    While I am still a bit stuffed from Thanksgiving, I’m pretty sure I didn’t order the word salad. Can you please bring this back to the kitchen? Thanks.

    Like or Dislike: Thumb up 5 Thumb down 0

  25. rudderpedals says:

    @JKB: You can’t implicitly overturn settled law, although you can create conflicting statutes which end up needing the Supreme Court to sort out.

    Which is supposed to construe the statutes in para materia to the extent possible, with the newer law superseding the older IIRC. The rules for sorting out conflicting fed laws…what are those rules?

    You seem to be saying that each session of Congress is bound by the laws passed by all of its predecessors. I’m not sure that’s the way it works.

    Like or Dislike: Thumb up 4 Thumb down 0

  26. JKB says:

    @Rafer Janders:

    I’m sorry reality is complex and messy. But it is reality and you just have to accept it.

    But to summarize. The RFPA is ‘settled law’. There is not explicit language or congressional record to indicate Congress (Democrats) intended to negate the settled law of the RFPA when they passed the ACA (unread) without knowledge of what language it included. In any case, the offending mandate is a regulation which must comply with all federal laws.

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  27. Rick DeMent says:

    @JKB:

    Corporations do not have religious beliefs and are not coverd under the RFPA. There that isn’t too hard to comprehend is it?

    Like or Dislike: Thumb up 11 Thumb down 1

  28. dazedandconfused says:

    Somebody has probably mentioned this somewhere in the multiple threads about it, but here’s somethings Scalia once wrote:

    Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

    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.

    Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.

    http://www.dailykos.com/story/2012/02/10/1063513/-Justice-Scalia-solves-the-contraception-debate#

    I think Roberts will ininterested in a the can of worms this would open too. They will keep their powder dry for reversing Roe v. Wade.

    Like or Dislike: Thumb up 5 Thumb down 0

  29. JKB says:

    @Rick DeMent: Corporations do not have religious beliefs and are not coverd under the RFPA.

    You appear to know a fact of law that is unknown to the US courts. I hope it is your intent to file an amicus brief in these cases so that the Justices are aware of this fact apparently only you know.

    Like or Dislike: Thumb up 0 Thumb down 8

  30. JKB says:

    It matters little. The disputed contraceptives are only mandated by regulation. A regulation that has no medical or financial rationale, only a political one. Such a regulation can easily be changed by a future administration or Congress.

    Like or Dislike: Thumb up 1 Thumb down 6

  31. David Weintraub says:

    @mike shupp: No. The issue in this case is really that these pre-modernists pine for the world that they imagine existed before contraception, so they construct contraception as outside the purview of medicine and health care. Literally, one of their talking points is “contraception is not health care.” But of course it is. Conception, and controlling conception medically, is by definition a medical matter. It is health care.

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  32. JohnMcC says:

    Well, just to start — the idea of a contraceptive mandate is not new or surprising. The National Conference of State Legislatures tells me that 26 states already have laws requiring health insurers who offer perscription coverage to include birth control and that two others require it by rules from the state insurance commissioner. Apparently Texas is one of the 26. So one wonders if Hobby Lobby checked the insurance they were (partially) paying for before the ACA came along. I will leave it for the class to discuss hypocracy on their own time, for now.

    There actually are real consequences for babies born unplanned/unintended (which is about half of American babies). Children unplanned are provably more likely to be “low-birth-weight” — in other words, premature — with the health problems that follow from that sad situation. The mothers are more likely to have smoked cigaretts and drunk alcohol during the pregnancy. They are more likely to have been victims of abuse and/or violence during or proceeding the pregnancy. They are less likely to have received pre-natal medical care.
    (Various sites from the CBC and the Guttmacher Institute — for those who need citations)

    The contraceptive mandate is only one of eight requirements that the ACA places on insurance policies sold within the umbrella of ObamaCare. Apparently the HHS Dept got the Institute of Medicine to recommend what should be included in any decent medical insurance policy for women of child-bearing age; they came up with what seems like a pretty good list.
    1. At least an annual well-woman check-up. 2. HPV testing and 3. HIV screening & counselling. 4.Domestic violence screening & counselling. 5. Contraception approved by the FDA. And a couple of pregnancy/new-born services involving (6.) gestational diabetes, (7.) STD screening & counselling and (8.) comprehensive lactational support.

    All of these are included in the insurance policies that — just to remind the crowd — are subsidized by Our Favorite Uncle.

    Pause to let that soak in. Mr Hobby Lobby (assuming such a person actually exists) is taking federal subsidies so that he can offer his employees AS A PART OF THEIR EARNINGS a health insurance policy that — in more than 1/2 the states — already includes contraceptive drug coverage.

    Now the discussion about frigging hypocrits may begin.

    Like or Dislike: Thumb up 13 Thumb down 0

  33. James Pearce says:

    there is no such thing as a right to have the cost of your contraceptives covered by an employer-provided health insurance policy.

    Acutally, Doug, from my understanding, if the ACA is mandating that employer-provided health insurance policy provide contraception coverage, then it very much becomes my right. Which is why this whole thing is being challenged in court: To prevent that right from being established permanently.

    To blithely dismiss them as Greenhouse and other commentators on the left have done is quite simply intellectually dishonest.

    HA! The left is being “intellectually dishonest?” That’s rich.

    It’s not the left who are pretending that there’s no real difference between the owners of corporations and the corporations they own, even though the point of incorporating is to create that difference.

    It’s not the left who are pretending that foisting one’s religious practices on others is not actually, you know, a shining example of “religious liberty.”

    This is quite clearly about sex. It’s about drugs. (As was the RFRA originally) It’s about the culture wars. It’s about chipping away at religious liberty in the name of religious liberty. It’s about fundamentally altering corporate law to achieve somewhat dubious ends that could not be achieved any other way.

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 0

  34. JohnMcC says:

    @JohnMcC: That is of course not ‘the CBC’ … it’s Centers for Disease Control — CDC. And I misspelled cigarettes.

    And thank you, Mr Pearce.

    Like or Dislike: Thumb up 2 Thumb down 1

  35. anjin-san says:

    @ JKB

    Why is it that the knowledge that someone, somewhere is getting laid drives conservatives around the bend?

    Like or Dislike: Thumb up 11 Thumb down 0

  36. Stonetools says:

    I can’t understand how in this day and age people have a problem with women getting contraceptives as part of their health care package. After all, almost all women between the age of 18 and 50 who are having sex use contraceptives regularly as part of their healthcare regimen. The only reason that I can think of to object to contraceptives is to limit the amount of sex women are having… okay, I think I just answered my own question.
    Now I know that conservatives are big into vagina control, but I’m surprised that the Libertarian is lining up on their side. On second thought, it’s not that surprising. Libertarians tend to fall into line with conservatives on the important issues. It’s almost like they are really conservative themselves, apart from a few pet issues.

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  37. Tyrell says:

    @al-Ameda: My opinion for several years is that employers should just give higher pay and do away with benefits such as health insurance and retirement contributions. I always have thought that I could have found a better health plan to suit my needs and I would have had more options on investing. That would eliminate a lot of problems. I really don’t understand the complaining here. It is not like any one is being forced to use birth control. Actually, for some people that would not be a bad idea.

    In other AHA news, it seems that they discovered the cause of one of their technical problems: their telegragh key was broke !
    President Obama forgot one of the cardinal rules of being president: if something goes wrong, blame it on the d_____ Russians!

    Like or Dislike: Thumb up 1 Thumb down 2

  38. James Pearce says:

    @Stonetools:

    On second thought, it’s not that surprising. Libertarians tend to fall into line with conservatives on the important issues.

    Agree with the first part, but not the second.

    For all practical purposes, libertarianism is inadequate as a philosophy. You can easily confuse a libertarian if you use the right buzzwords, and this is a perfect illustration. Take “government mandate” add in a dose of “religious freedom” and the outcome is virtually predetermined.

    Dig a little deeper, though, and the issue becomes much more complex, and the Hobby Lobby position much less sympathetic. After all, absent our government’s controlled substance regime, Hobby Lobby would have no mechanism by which to deny their employees contraception coverage.

    Government coercion sucks….until it doesn’t.

    @JohnMcC:

    And thank you, Mr Pearce.

    Your welcome.

    Like or Dislike: Thumb up 7 Thumb down 0

  39. Rick DeMent says:

    @JKB:

    You appear to know a fact of law that is unknown to the US courts. I hope it is your intent to file an amicus brief in these cases so that the Justices are aware of this fact apparently only you know.

    Not really, the whole idea of corporate law is to insulate the people that run a corporation from the workings of the corporation itself. If the company is required to do things that the shareholders object to then there is a fast and easy remedy, sell their shares. Kind of like if Wal-mart workers don’t like what the company pays them or tells them when they have to work, they can quit.

    Like or Dislike: Thumb up 6 Thumb down 0

  40. James Pearce says:

    @Tyrell:

    My opinion for several years is that employers should just give higher pay and do away with benefits such as health insurance and retirement contributions.

    That’s an even more radical departure from the pre-ACA status quo than the ACA. Retirement contributions too?

    I dunno….I personally think that 401Ks are somewhat preferable to defined pensions, not only for tax reasons but for business reasons as well. Industry seems to agree.

    I always have thought that I could have found a better health plan to suit my needs and I would have had more options on investing.

    That may be true. Have you looked into it?

    I have. Every time I think about dropping my employer-sponsored health coverage during the open enrollment process, I find that my employer-sponsored health coverage is a much better product. The premiums are cheaper and the coverage is better. I have to begrudgingly admit that my company is better at negotiating this stuff than I am.

    Like or Dislike: Thumb up 8 Thumb down 0

  41. C. Clavin says:

    @dazedandconfused:
    Thanks for the Scalia quote.
    Unfortunately we have seen Scalia change his beliefs before.

    Like or Dislike: Thumb up 3 Thumb down 0

  42. C. Clavin says:

    @James Pearce:
    Well yeah…plus your are getting a health care subsidy from the Zgovernment.
    Ted Cruz’s is on the order of $14K

    Like or Dislike: Thumb up 6 Thumb down 0

  43. JKB says:

    @anjin-san: Why is it that the knowledge that someone, somewhere is getting laid drives conservatives around the bend?

    Why is it that the knowledge that someone, somewhere is exercising freedom of thought drives progressives around the bend?

    And why are progressives all about freedom with whom, what, or when, where, how someone gets laid, but, want to control everything about how everyone manages their health care?

    Like or Dislike: Thumb up 0 Thumb down 8

  44. JKB says:

    @Rick DeMent:

    You should put that in your Amicus brief.

    Now that the filibuster has been banished, perhaps Barack should appoint you to the federal bench you are such an expert in corporation structure and rights.

    Like or Dislike: Thumb up 0 Thumb down 6

  45. James Pearce says:

    @JKB:

    Why is it that the knowledge that someone, somewhere is exercising freedom of thought drives progressives around the bend?

    If it was just a thought, that would be one thing. But here we have a specific case of a company acting to involve themselves in other people’s medical decisions. Not cool.

    @C. Clavin:

    Well yeah…plus your are getting a health care subsidy from the Zgovernment.

    Zgoverment is Awonderful thing.

    Like or Dislike: Thumb up 8 Thumb down 0

  46. JKB says:

    @James Pearce: But here we have a specific case of a company acting to involve themselves in other people’s medical decisions. Not cool.

    Nonsense. These privately/closely-held corporations are not seeking to stop individuals from deciding anything. There is no attempt to prohibit any employee from making any decision to utilize these practices using their own funds, even those gained as wages from the company. Nor are the practices in question costly or difficult to obtain as an individual.

    The question is can someone be forced to pay for, i.e., provide, for someone else a procedure/treatment/medication that will cause a result that is materially against their religious beliefs. In the case of Hobby Lobby, the intentional destruction of a fertilized egg (zygote), or according to their religious beliefs, a life. Such an act, although not recognized as such by the broader society, murder in their beliefs.

    Like or Dislike: Thumb up 0 Thumb down 8

  47. JKB says:

    I must say I do agree with Megan McCardle here, a win by the Obama administration will only increase the precariousness of the Obamacare law by making it similar to abortion. Only Obamacare is not a right but simply a poorly written law. Laws can be repealed. As happened in the 1980s with the Medicare catastrophic coverage law.

    Or, if rudderpedals, had his way, superseded by later legislation.

    Like or Dislike: Thumb up 0 Thumb down 5

  48. C. Clavin says:

    @JKB:
    So you encourage the imposition of religious beliefs on others???

    Like or Dislike: Thumb up 7 Thumb down 0

  49. C. Clavin says:

    @JKB:
    So you are all in favor of Hobby Libby imposing its religious beliefs on others.
    Isn’t the white Christian generous?
    What would you think about Achmeds Hobby Store not supplying anything against Sharia Law to their employees?
    Jesus-Gawd would you be throwing a spittle-laced tantrum.
    And therein lies your hypocrisy.

    Like or Dislike: Thumb up 7 Thumb down 0

  50. C. Clavin says:

    @JKB:
    It’s easy for people like you to make a principled argument when you agree with the principle involved.
    People like you are uninterested in the same principles applying when you disagree.
    People like you…are part of the problem.

    Like or Dislike: Thumb up 2 Thumb down 0

  51. JKB says:

    @C. Clavin:

    Well, I’m actually for everyone paying for their own healthcare. For it being forbidden to provide health insurance as a part of employee compensation either directly from the company or via the union. Of course, then the Progs would have to extend the tax benefits they give to companies for health care expenses to everyone. Not to mention it would mean unions wouldn’t be able to attract as many members to their cartel.

    But I have heard many lamentations from you Progs here about those terrible employers who don’t provide health insurance to their employees.

    If you really want to promote freedom and liberty, you’d be pushing to make healthcare illegal to provide as part of a special group be it as employee, union member, etc. Then no religious problem as people would be providing for themselves. No being enslaved to an employer because you need to keep their health plan. No being unable to leave a union for the same reason. No need to run off the older workers or those with ill family members to keep your rates down (and I know people this happened to by fellow employees).

    See, liberty, freedom for all. But of course, also responsibility for yourself and hard choices like health insurance or that new iPhone.

    Like or Dislike: Thumb up 0 Thumb down 4

  52. Rafer Janders says:

    @JKB:

    In the case of Hobby Lobby, the intentional destruction of a fertilized egg (zygote), or according to their religious beliefs, a life.

    Again, Hobby Lobby does not have religious beliefs, because Hobby Lobby is a corporation. As a corporation, it cannot have religious beliefs, ipso facto. Now, the individuals who own Hobby Lobby can and do have religious beliefs, but they lost the ability to impose those beliefs the second they incorporated as a corporation, since the whole point of incorporation is to create a legal entity that is completely separate from the individual.

    Now, I suppose that the owners of Hobby Lobby can say that they want to pierce the corporate veil — but in that case they have to be willing to take it all the way. If their religious beliefs are to be part of Hobby Lobby, then so should their personal assets. That means that if Hobby Lobby gets sued, the owners’ cars, homes, bank accounts etc. can also get attached.

    Like or Dislike: Thumb up 13 Thumb down 0

  53. Rafer Janders says:

    @JKB:

    There is no attempt to prohibit any employee from making any decision to utilize these practices using their own funds, even those gained as wages from the company.

    False, since the health insurance is itself part of the employee’s own funds. Health insurance is compensation.

    Nor are the practices in question costly or difficult to obtain as an individual.

    Again, potentially false. That all depends on the individual employee.

    The question is can someone be forced to pay for, i.e., provide, for someone else a procedure/treatment/medication that will cause a result that is materially against their religious beliefs.

    That question has been long settled in law, and the answer is clearly yes. That’s why, for example, my taxes can go to pay for the US military and for the death penalty. Just because something can be against your religious beliefs does not, ipso facto, mean that you have an automatic defense against paying for it.

    Like or Dislike: Thumb up 9 Thumb down 0

  54. de stijl says:

    @JKB:

    In the case of Hobby Lobby, the intentional destruction of a fertilized egg (zygote), or according to their religious beliefs, a life. Such an act, although not recognized as such by the broader society, murder in their beliefs.

    How the hell does this have anything to do about anything? I believe the sun dies every evening and Odin will resurrect the next world after this one slowly fades into ice. As your employer, why should my religious dysfunction have anything to do with your rights as a citizen?

    As your employer, I’ve incorporated unless I’m a moron. As a corporation, I can have no religious beliefs.

    Why is this so hard to understand? Seriously, imagine yourself in someone else’s shoes for just a fraction of a second. Can you not do that?

    Like or Dislike: Thumb up 7 Thumb down 0

  55. C. Clavin says:

    @JKB:

    Well, I’m actually for everyone paying for their own healthcare.

    I would like to remove employers from the equation as well…but that has nothing to do with your interest in imposing your religious beliefs on others. Certainly health care is a symptom of your problem.

    Like or Dislike: Thumb up 1 Thumb down 0

  56. de stijl says:

    @JKB:

    Well, I’m actually for everyone paying for their own healthcare.

    You should open a hospital and see how that works out.

    Like or Dislike: Thumb up 5 Thumb down 0

  57. JohnMcC says:

    @JKB: “Well, I’m actually for everyone paying for their own healthcare.” Which is a reasonable expectation for most of the human race. What would you expect from the Downs’ Syndrome-afflicted child? Or the 92yr old who’s had a stroke? Or do these brothers and sisters of ours simply fall through the cracks in your world?

    For grown-ups, the realm of “healthcare” is a perfect distillation of a place where we cannot ‘take care of ourselves’. If you happen to be a believer in Christianity, you could read Luke 10 to discover what the Founder of your religion thought was the obligation we have in the healthcare of others.

    “(I’m) (f)or it being forbidden to provide health insurance as a part of employee compensation…”
    So you would be for the US gov’t exercising that much control over the contracts that employers and employees freely agree between themselves?! Don’t you believe in freedom, in liberty? What’s the matter with you? The freedom to make contracts is pretty much basic to the American scheme of freedom under law.
    You should learn something about it.

    Of course, if you should be inarticulately expressing dissatisfaction with the subsidy provided for employer-provided health insurance, that was the Republican healthcare plan in ’08. So in addition to being 5 yrs behind the discussion, you’ve picked a political loser to believe in.

    Go away. Come back when you’ve grown up and have a new idea or two.

    Like or Dislike: Thumb up 8 Thumb down 0

  58. Grewgills says:

    @JKB:

    Not to mention honored the pledge to make the full text available for days prior to the vote.

    The full text of the bill was available weeks before the vote in the House.

    Like or Dislike: Thumb up 6 Thumb down 0

  59. Grewgills says:

    @C. Clavin:

    Unfortunately we have seen Scalia change his beliefs before.

    He doesn’t change his beliefs; he changes his rationalizations. You almost always know how he will vote well before the first argument is read.

    Like or Dislike: Thumb up 5 Thumb down 0

  60. Grewgills says:

    @JKB:

    Now that the filibuster has been banished

    for votes on certain presidential appointments. There fixed that for you. Now do you see how that is completely inapplicable in the way you posit?

    Like or Dislike: Thumb up 5 Thumb down 0

  61. Grewgills says:

    @C. Clavin:
    Only Christianity

    Like or Dislike: Thumb up 0 Thumb down 0

  62. JKB says:

    @Grewgills: The full text of the bill was available weeks before the vote in the House.

    Then why, pray tell, did House Speaker Nancy Pelosi (D-CA) say that the House had to pass the bill so people could find out what was in it?

    Was this another Democrat lie?

    IYLYP.YCKYP.

    Like or Dislike: Thumb up 0 Thumb down 5

  63. Rafer Janders says:

    To blithely dismiss them as Greenhouse and other commentators on the left have done is quite simply intellectually dishonest.

    Man, to be chastised for intellectual dishonesty by Doug Mataconis is rather like being lectured on sexual promiscuity by Charlie Sheen….

    Like or Dislike: Thumb up 7 Thumb down 0

  64. JKB says:

    @de stijl: Why is this so hard to understand?

    Perhaps because the question of whether a privately/closely held corporation can exercise religious freedom is the question before the SCOTUS? How can I understand to firm assertion something that is not settled law for the many federal judges who have reviewed the question and that the Justices on the Supreme Court feel is a matter worthy of their consideration?

    Like or Dislike: Thumb up 0 Thumb down 3

  65. Rafer Janders says:

    Seriously, do you understand what incorporation is? I can do business as Rafer Janders, individual. That means I can impose any personal or religious beliefs I want to in the course of my business, subject otherwise to applicable laws, but it also means that if I get sued, I Rafer Janders as a private individual am on the hook for all costs.

    To avoid this, I incorporate as RJ LLC. Now there is Rafer Janders the private individual, and RJ the New York limited liability corporation. RJ LLC can not have any personal religious beliefs, since it is not a person but a business. The personal religious beliefs belong to the person. However, if RJ LLC gets sued, only the assets of RJ LLC, and not the assets of Rafer Janders the private individual, are at risk.

    What Hobby Lobby is saying, however, is that they want to have it both ways. They want to be a private individual when it comes to religious beliefs, but they want to be a corporation when it comes to all other aspects of their business.

    Like or Dislike: Thumb up 10 Thumb down 0

  66. Rafer Janders says:

    @JKB:

    Perhaps because the question of whether a privately/closely held corporation can exercise religious freedom is the question before the SCOTUS?

    The key word in that sentence is “corporation”. Corporation, as opposed to an individual. “Closely-held” only means that the corporation only has a limited number of shareholders, generally in which the majority of the shares are held by less than five shareholders. Whether closely held or not, however, a corporation is a corporation, not an individual, and does not hold religious beliefs.

    Like or Dislike: Thumb up 3 Thumb down 0

  67. JKB says:

    @JohnMcC:

    I’m sorry but if separation of church and state means Christians can’t pray in public or school or even by student athletes, I reject all appeals to religious teachings in the advancement of state programs and goals. Whether I believe them or not. Try again with a non-religious argument.

    The free contracting has been tried and found to give avenue to others who wish to use it it as a means to impose the same by government coercion. As such, in the presence of government, banning is the least restrictive means to stop such coercion.

    What do I care what Republicans advanced. I look at programs and ideas for their viability no which ideologue promoted them. And given the failure of Obamacare, we should not abandon past ideas that were not tried, but rather should redouble the efforts to build the political consensus for them.

    Like or Dislike: Thumb up 0 Thumb down 5

  68. Rafer Janders says:

    When discussing employment issues, the conservatives on this blog often say “you don’t like the conditions of your job? Then quit!”

    To which I say to the owners of Hobby Lobby “you don’t like the insurance mandate? Then sell your shares!”

    No one is forcing them to stay in business. If they don’t like it — quit.

    Like or Dislike: Thumb up 10 Thumb down 0

  69. Rafer Janders says:

    @JKB:

    I’m sorry but if separation of church and state means Christians can’t pray in public or school or even by student athletes,

    Separation of church and state does not mean that.

    Moron.

    Like or Dislike: Thumb up 7 Thumb down 0

  70. rudderpedals says:

    @JKB:

    In the case of Hobby Lobby, the intentional destruction of a fertilized egg (zygote), or according to their religious beliefs, a life. Such an act, although not recognized as such by the broader society, murder in their beliefs.

    That’s not quite how it’s presented. Hobby Lobby’s complaint is based on a belief that some contraceptives prevents implantation of a fertilized egg (thus killing it). One problem is that the belief is false. The Court can avoid deciding this but if presses on then I expect it’ll set a test that requires bona fide religious belief and perhaps even whether specific religious beliefs known to be false can trump law.

    Talk about your entanglement,,,

    Like or Dislike: Thumb up 1 Thumb down 0

  71. de stijl says:

    @JKB:

    the question of whether a privately/closely held corporation

    I have a closely held opinion that you have now idea what you’re talking about. Very , very closely held.

    Like or Dislike: Thumb up 3 Thumb down 0

  72. dazedandconfused says:

    @C. Clavin:

    Thanks, and you’re welcome. Couple things about that post, it should have been “uninterested”, not “ininterested”. Small keys, big fingers.

    With existing majority opinions like that already “in the books”, perhaps the real issue is why there are lower courts split on this matter and the SC has to take it up at all.

    I hear Louis Gohmert was a judge….

    Like or Dislike: Thumb up 1 Thumb down 0

  73. de stijl says:

    @JKB:

    separation of church and state means Christians can’t pray in public or school or even by student athletes

    No one says this.

    Anyone can pray anywhere they’d like (although Matthew 6:6 says you should do it in a closet so you won’t look like a hypocrite).

    Furthermore, you may want to brush up on the Establishment clause in the 1st Amendment. Seriously, no fooling. You’re getting it very wrong.

    Let’s have a thought experiment. Imagine that you have a job at Super Totally Fun, Unlimited (STFU). The owner of STFU worships Grumpy Cat as the supreme deity. She believes that Grumpy Cat has decreed that clipping toenails is evil.

    A federal law allows you to go to a podiatrist if you would like – perhaps you could have your toenails clipped if you would like to. You don’t have to. It’s up to you under the law. STFU’s owner wants to take away your ability to clip your toenails.

    Here’s the M. Night Shyamalan twist – YOU DON’T BELIEVE IN GRUMPY CAT!

    Whoa! I just blew my own mind.

    Like or Dislike: Thumb up 9 Thumb down 0

  74. anjin-san says:

    Christians can’t pray in public schools

    I never cease to be amazed by how stupid this argument is.

    Like or Dislike: Thumb up 7 Thumb down 0

  75. anjin-san says:

    @ de stijl

    Are you implying that Grumpy Cat is not at least a demigod?

    Like or Dislike: Thumb up 4 Thumb down 0

  76. de stijl says:

    Grumpy Cat is The Mother. McKayla Maroney is The Daughter. Your totally uninterested in you barista is The Holy Ghost.

    Matercula. Filia. Hostia Sanctus Cafeum.

    Like or Dislike: Thumb up 3 Thumb down 0

  77. de stijl says:

    @Rafer Janders:

    When discussing employment issues, the conservatives on this blog often say “you don’t like the conditions of your job? Then quit!”

    To which I say to the owners of Hobby Lobby “you don’t like the insurance mandate? Then sell your shares!”

    No one is forcing them to stay in business. If they don’t like it — quit.

    +1000

    Like or Dislike: Thumb up 4 Thumb down 0

  78. James Pearce says:

    @JKB:

    “There is no attempt to prohibit any employee from making any decision to utilize these practices using their own funds, even those gained as wages from the company. Nor are the practices in question costly or difficult to obtain as an individual.”

    You must not have noticed how carefully I worded my statement. I did not say that Hobby Lobby was attempting to prevent their employees from obtaining contraception.

    I said, “a company acting to involve themselves in other people’s medical decisions,” which is, unfortunately, a true statement. Regardless of Hobby Lobby’s religious beliefs, they are not medical professionals and should not be allowed to pick and choose which medical treatments are or are not included in their health plans based on their religious preferences.

    I mean, come on.

    Like or Dislike: Thumb up 5 Thumb down 0

  79. JKB says:

    @James Pearce:

    You don’t want people involved in your business don’t make them pay for your business.

    Like or Dislike: Thumb up 0 Thumb down 6

  80. Rafer Janders says:

    @JKB:

    You don’t want to be subject to the strictures on corporations don’t incorporate as a corporation.

    If they Hobby Lobby guys want to do business as private individuals — with all the legal exposure that opens them up to — then they are welcome to do so. But if they seek the protection of the state by incorporating, then they have to play by the rules that apply to corporations and not to private individuals.

    Like or Dislike: Thumb up 10 Thumb down 0

  81. Rafer Janders says:

    Um, why moderation for this comment below?:

    You don’t want to be subject to the strictures on corporations don’t incorporate as a corporation.

    If they Hobby Lobby guys want to do business as private individuals — with all the legal exposure that opens them up to — then they are welcome to do so. But if they seek the protection of the state by incorporating, then they have to play by the rules that apply to corporations and not to private individuals.

    Like or Dislike: Thumb up 1 Thumb down 0

  82. gVOR08 says:

    Legalities aside, over the years I’ve been compelled to pay a lot of taxes to support wars I regarded as totally immoral. Not to mention obviously counterproductive. As a result I have a lot of trouble caring that someone has to suffer the horror of providing standard issue health insurance to their employees.

    Like or Dislike: Thumb up 2 Thumb down 0

  83. JKB says:

    @Rafer Janders:

    So your prohibiting free exercise means as long as you don’t attempt to be a full equal member of society?

    But the point in fact is there is the RFPA that this regulation violates.

    Like or Dislike: Thumb up 0 Thumb down 3

  84. JKB says:

    @gVOR08:

    And your situation would be similar if you were forced to directly purchase arms to outfit your employees for fighting in a war.

    Instead, you pay taxes, some of which are used to fund wars which are a political question as to whether they are to be conducted. None of these cases would stand if the companies or individuals in question were seeking to stop some tax dollars from being used to purchase contraception for others.

    Like or Dislike: Thumb up 0 Thumb down 3

  85. anjin-san says:

    If you happen to be a believer in Christianity, you could read Luke 10 to discover what the Founder of your religion thought was the obligation we have in the healthcare of others.

    Sadly, a great many “Christian conservatives” seem entirely uninterested in the actual teaching of Jesus (something that even I, a Buddhist, find to be a useful guide for being a good person)

    It’s much easier just to do a little Jesus name dropping, pat yourself on the back for being righteous, and call it a day.

    Like or Dislike: Thumb up 5 Thumb down 0

  86. James Pearce says:

    @JKB:

    You don’t want people involved in your business don’t make them pay for your business.

    Back to this nonsense again? It’s not the nanny state. It’s the nanny boss.

    The Boss: “I’m paying for your healthcare, so I get to say what you can and can’t get based on my religious conscience.”

    The Employee: “Um, I’m paying my premium. I don’t get a say?”

    The Boss: “Let me consult my religious conscience. Nope.”

    Ridiculous.

    Like or Dislike: Thumb up 9 Thumb down 0

  87. Rick DeMent says:

    The other issue is who exactly is paying, compensation is given to the employee in return for their labor, the idea that the employer is paying for any of it is dubious at best. It’s the employees compensation not the employer “paying” for birth control.

    Like or Dislike: Thumb up 4 Thumb down 0

  88. Gavrilo says:

    @anjin-san:

    Yes. I’m sure it’s just an amazing coincidence that so many hospitals are named after saints, being that “Christian conservatives” are only interested in name dropping. Tell you what, next time you get sick, go down to the local Buddhist hospital and tell us how that goes.

    Like or Dislike: Thumb up 0 Thumb down 1

  89. anjin-san says:

    @ Gavrilo

    Well, for one thing, hospitals named after saints are (for the most part) Catholic – not a group I include with “Christian conservatives”, though there is some overlap. The Catholic Church does a reasonably good job following the teachings of Jesus – I know the one my wife attends puts a great deal of effort into helping the poor, it is their primary mission. It’s also worth noting that Pope Francis seems very focused on the core Catholic mission of helping the sick and poor. This is very, very good news.

    So sorry, the many Christian conservatives who seem to utterly despise the poor and who work to keep the uninsured that way don’t get to claim credit for the good works of Catholics. Also, keep in mind that there are hospitals such as St. Judes that have no religious affiliation.

    As for me, the next time I get sick, I will head to Kaiser, thanks.

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  90. Gavrilo says:

    @anjin-san:

    Except it’s not just Catholics. There are thousands of hospitals in the U.S. affiliated with protestant churches as well. Even the eeevil conservative Southern Baptists run hospitals all over the south. Christians have been putting there money where their mouth is and providing health care for poor people for hundreds of years.

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  91. wr says:

    @Gavrilo: What’s your point? I don’t recall anyone here saying all religious people — or even all Christians — are bad. So what difference does it make to this discussion if there are hospitals founded by religious orders?

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  92. JohnMcC says:

    @Rick DeMent: Point well put! The insurance bargained for by the employer is actually entirely a substitute for a larger paycheck; it is earned along with all the other compensation.

    And importantly, the employer is earning a nice tax deduction in exchange for doing the administrative work of choosing that insurance policy. Which in my mind makes a kind of contract between the federal gov’t and that employer. But I’m an old-fashioned kind of guy who thinks that if you receive something, you should repay.

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  93. anjin-san says:

    @ Gavrilo

    Ah, well perhaps I am misinformed. Can you provide me with some links to GOP/tea party/conservative Christian websites where they explain their policies of expanding safety net services for the poor? Perhaps you could also share the names of GOP members of congress that fought against food stamp cuts. It would be appreciated.

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  94. JohnMcC says:

    @Gavrilo: As of course they should if they follow the religion that was founded by followers of Jesus. What is your point? Do you have a point?

    And, incidentally, that same religion has some guidelines for how a person of wealth and power should treat their employees. Would you like to have that discussion? It involves reading the Bible and various theologians so would be a distraction from our happy scrum. But if you are actually interested in it, I’m your guy!

    A hint: It does not involve the freedom to amass great wealth while leaving one’s servants impoverished.

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  95. anjin-san says:

    @ Gavrilo

    Perhaps you could also show were I so much as implied that any particular group is “evil”…

    Keep playing that victim fiddle

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  96. Doug Indeap says:

    The question whether corporations ought to be treated as individuals with a right to religious liberty has grabbed attention, but a preliminary question is whether the health care law actually forces employers—corporate or not–to act contrary to their consciences.

    Employers may comply with the law by choosing either of two options: (1) provide qualifying health insurance plans or (2) do not provide such plans and instead pay assessments to the government. Unless one supposes that the employers’ religions forbid payments of money to the government, the law does not compel them to act contrary to their beliefs.

    The second choice does not amount to “violating” the law and paying a “fine,” as some suppose. As the law “does not explicitly mandate an employer to offer employees acceptable health insurance” (http://www.ncsl.org/documents/health/EmployerPenalties.pdf), there is no such “mandate” to “violate.” Rather, the law affords employers two options, either of which is as lawful as the other.

    Nor are the assessments set so high that paying them would drive employers out of business, as some speculate. The law provides that if a “large employer” (i.e., one with at least 50 employees) chooses not to provide health insurance, it must pay assessments of $2,000 per year per employee after the first 30 employees. That is much less than an employer typically would pay for health insurance. Small employers would pay no assessments at all. Because of this potential saving and because the law affords individuals realistic opportunities to obtain insurance on their own, many employers are considering this option–for reasons entirely unrelated to religion. (http://online.wsj.com/article/SB10000872396390443437504577545770682810842.html)

    In recently issued commentary on the various options of employers, the National Catholic Bioethics Center acknowledges, albeit grudgingly, that the option of not providing health insurance and instead paying assessments is “morally sound.” While also considering this option “unfortunate” in that the insurance employees would find on their own would include coverage the Center deems objectionable, the Center concludes that the employers’ “moral connection” to that coverage would be “remote.” https://ncbcenter.org/document.doc?id=450&erid=194821

    Bottom line: Employers are not forced by the law to act contrary to their consciences. Rather, as recognized by even those who object to some aspects of the insurance the law makes available, the law affords employers with similar objections the morally sound option of not providing such insurance and paying assessments instead. Employers seeking exemption from the law aim not for religious liberty for themselves (they already have that), but rather for power over their employees.

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  97. grumpy realist says:

    Doug–you’re wrong. It’s sex. Male-dominated religions spend most of their bluster telling women how, where, when, and with whom. We’re considered nothing more than walking wombs and child-raisers. The more conservative the religion, the more restricted the choices are for women.

    And birth control gets used for a lot of stuff above and beyond birth control. It helps against ovarian cancer (one of the cancers we women are usually terrified about because it’s symptomless.) It helps regulate periods. It helps those of us of a mature age go through menopause. And that ‘s just what my gynecologist casually mentioned to me when asking me whether I might be interested going back on it again.

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  98. Barry says:

    @Gustopher: “I wouldn’t be surprised if they took on the question of when a legal construct such as an incorporated entity can even have religious views, or where the line between an exception for contraception and an exception for blood transfusions lies. ”

    Or other things; if an incorporated, for-profit entity can gain religious exemption from labor laws on this matter, why not for gender and racial matters?

    For example, what if the company claims ‘sincere religious belief’ that women should never be a position of authority over men?

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  99. Barry says:

    @JKB: “There is not explicit language or congressional record to indicate Congress (Democrats) intended to negate the settled law of the RFPA when they passed the ACA (unread) without knowledge of what language it included. ”

    Which is exactly what Rudderpedals was pointing out – if has to *explicitly* state that it supercedes each and every section of all previous laws, then a 2,000 page bill would be a short bill.

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  100. Barry says:

    @dazedandconfused: “Somebody has probably mentioned this somewhere in the multiple threads about it, but here’s somethings Scalia once wrote:

    ” Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”"

    On the other hand, honesty and consistency are not hallmarks of Scalia’s jurisprudence. It was noted that in the Shelby v. DoJ case, he casually overturned a federal law, but in the DOMA case, he scathingly upbraided the rest of the SCOTUS for ‘daring’ to do just that.

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  101. grumpy realist says:

    @Barry: If this does get allowed, I predict the next target will be the need to support single-sex spouses of employees in states that allow gay marriage. No, I don’t recognize your marriage, thus I don’t have to come up with a health insurance plan that allows your spouse on it.

    I’m just waiting until someone decides that hetrosexual marriage of divorced people doesn’t exist….

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  102. Monala says:

    @JKB: The employer is not directly purchasing anything. The employer is paying for insurance (and often the employees are paying premiums as well) in lieu of compensation. Some of that insurance may go toward birth control – but it may not.

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  103. Barry says:

    @grumpy realist: “I’m just waiting until someone decides that hetrosexual marriage of divorced people doesn’t exist…. …”

    The can of worms that an honest follow-up to the likely precedent is incredible.

    Of course, we know that honesty is not these guys’ strong suite.

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