The Widdershins

People v. Persons…

Posted on: March 26, 2014

Good afternoon Widdershins. For those tuning in for one of Fredster’s always insightful posts, you’ll have to suffer me today. Fredster’s computer is “CPU”ny and “app”opletic today and I’m subbing for him. He’ll be back in a day or so.

Personal religious ascendancy can be triggered by many things — it might be a burning bush, an archangel, a miracle, or something as mundane as a call to your corporation’s general counsel. It’s that last thing that spawned yesterday’s case before the Supreme Court, Hobby Lobby, et al. v. Sebelius.

You see, Hobby Lobby was already providing contraceptive coverage, even emergency “Plan B” contraception, to Hobby Lobbytheir employees until that fateful day when their General Counsel’s phone rang. It was the Becket Fund for Religious Liberty, a poseur victimhood factory, calling to ask if Hobby Lobby was interested in suing the federal government over the provisions of the Affordable Care Act.

Hobby Lobby, with its 500 to 640 stores and 13,000 to 28,000 employees (differing accounts give differing estimates), was soon joined by Conestoga Wood Specialties Corp., a Mennonite owned company from Pennsylvania with 950 employees. Both agreed to serve as the plaintiffs in this first blush attempt at endowing personal religious freedom upon corporations. I’m sure after a torrid tryst punctuated with passionate disdain for the ACA, Hobby Lobby, et al. v. Sebelius was conceived in the appropriate missionary style.

At the heart of this case is the 1993 Religious Freedom Restoration Act (RFRA). RFRA itself was a congressional reaction to a prior Supreme Court case Congress wanted to rectify. That case was Employment Division v. Smith. Decided in 1990, the issue presented in Smith was whether or not Oregon could deny unemployment benefits to two Native American men who were fired for using peyote, even though peyote was part of their religious rituals.

ScaliaNone other than Justice Scalia wrote:

A person’s religious beliefs cannot prevent him or her from abiding by laws that are neutral and not aimed at restricting religious freedom.

After the Smith case, Congress wanted to ensure minority religions were protected and passed RFRA in response. The RFRA legislative history is without question — Congress wanted to protect individuals, religious institutions, and religious organizations. Nowhere within the legislative history does RFRA mention or even hint at for-profit corporations like Hobby Lobby.

In any discussion of RFRA, you might have heard the term, “shield versus a sword”. The Congressional Record is unambiguous about this point, RFRA was meant as an individual shield and not as a sword when it came to religious rights. Simply put, RFRA was meant to protect individual religious rights and not to be used as a weapon to force religious beliefs upon others.

In the words of a smart 17th century guy, “Therein lies the rub.” The question of the Hobby Lobby case is whether or not a corporation can force, through its actions and overwhelming economic power, its religious fervor upon its female employees when it comes to certain types of contraception — not all contraception mind you, just those types of contraception the billionaire Green family find objectionable.


RFRA has become the Swiss Army Knife of the conservative legal toolkit. As such, it is the go-to admission ticket for every type of “conscious offending religious challenge” to any legislation or regulation even in the face of U.S. v. Lee, another Supreme Court decision that held:

Religious beliefs do not provide an exemption from regulations. Allowing an employer’s religious exemptions from government laws would operate to “impose an employer’s religious faith on their employees.”

Contraception concerns?  Really?  Really!  What decade?

Contraception concerns? Really? Really! What decade?

Suffice it to say, the Hobby Lobby case would open the floodgates for corporate discrimination through suits challenging Title VII of the Civil Rights Act of 1964 on sex, race, color, national origin, and religion, challenging the Fair Housing Act, and challenging the Pregnancy Discrimination Act that is a part of Title VII to only name a few.

There are practical considerations as well since half of all Americans receive their insurance overage through their employers. What if your employer is a Jehovah’s Witness who forbids blood transfusions, or a fundamentalist Christian, Jew, or Muslim who opposes vaccinations, or a Christian Scientist who eschews all forms of modern medicine, or a Scientologist who opposes psychiatry, or an Evangelical who opposes HPV vaccinations? The answer to each of these hypotheticals is that the economic power of the corporate employer is coercing your observance of their religious beliefs, thereby impinging upon your individual religious freedom.

Yesterday’s oral argument opened several barrels of worms. I’ll just mention three. The first was the most egregiously repugnant. The counsel for Hobby Lobby consistently cast the insurance provided contraceptive coverage as some sort of “gift” to Hobby Lobby’s female employees. The same female employees who work the floors of Hobby Lobby’s stores and generate $3 Billion dollars a year in revenue for the Green family. Insurance is no gift — it is earned as a part of wages and any implication to the contrary is evidence of a troglodyte mentality better left in caves.

Stop War on WomenThe next point is a practical one raised by Justice Kagan who said:  If Hobby Lobby is given what they want, it will be left to the courts to determine which religious values are valid and which are not. The task will be unending, but by the very act of sanctioning religious values, it would be an impermissible violation of the Establishment Clause of the Constitution.

The last point was advanced by the Wall Street Journal in its coverage of the argument. They opined Chief Justice Roberts might be trying to craft some “split the baby” decision in order to capture the vote of Justice Kennedy. The conjecture was around a religious exemption for closely held corporations like Hobby Lobby. That cockamamie idea contains more horse hockey than the paddocks of Churchill Downs on Sunday morning and here’s why. I did a little research and the following is a small listing of some privately held corporations:

Cargill with $136 Billion in revenue and 140,000 employees
Koch Industries with $115 Billion in revenue and 60,000 employees
Dell Computers with $60 Billion in revenue and 111,300 employees
Bechtel Industries with $38 Billion in revenue and 53,000 employees
Ernst & Young with $26 Billion in revenue and 175,000 employees
Aramark with $14 Billion in revenue and 259,000 employees
Toys-R-Us with $14 Billion in revenue and 108,000 employees

In 1782, James Madison wrote that religious rights were “private rights”. In keeping, the Framers declared in the First Amendment a protection for the religious rights of the “people”. Quite inartfully, in passing the Religious Freedom Restoration Act, Congress declared the legislation a protection of the religious rights of “persons” thereby opening the door for this politically ginned-up litigation. Prior to this no one had ever fathomed the idea corporations had religious rights, no less seriously advocated it.

This corporation-enamored Supreme Court is about to demonstrate whether they are black-robed two-bit politicians or jurists. Let’s hope there are at least five jurists.

This is an open thread.



6 Responses to "People v. Persons…"

As usual, this will hinge on Kennedy. This is the slipperiest slope encountered to date,
If corporations now have the same rights to religion and free speech as I do, they now need to pay the same tax rates as I do. They need to be covered by the same anti=pollution statutes that I am, If they have the same rights as I do, they need to bear the same responsibilities that I do

Many thanks Prolix for covering for me today with this excellent analysis of what’s going on with the Hobby Lobby issue. Last night inbetween hair-pulling and head-banging-on-desk motions I caught part of Rachel Maddow’s show and she mentioned the 1990 case and Scalia’s statements on it. Didn’t find that segment but there was another segment already on youtube.

Also, TPM had a piece written before the hearing that mentions Scalia’s reasoning in the 1990 case.

“[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” Scalia wrote in the 6-3 majority decision, going on to aggressively argue that such exemptions could be a slippery slope to lawlessness and that “[a]ny society adopting such a system would be courting anarchy.”

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

Now, for what was causing me endless grief last night with the computer:

PC users, i.e. Windows, if you happen to go to any website where you see “Appbario” or “Appbario12” or a link to anything labeled Conduit, run away from that site! Appbario purports to be a search engine but it’s really terrible, awful malware. The “search engine” will take you to sites whether you want to there or not and will totally ruin your ability to run searches with, say, google. Norton did not pick up anything with this and I didn’t realize it was even on my laptop until I tried to do a search. I had to end up going down into the Windows registry files and I hate doing that because that’s the “guts” that make Windows run.. I really thought I was going to have to end up wiping the entire drive to get this fixed.

LOL! Jon Stewart just referred to Hobby Lobby as “Jesus Christ’s Superstore”.

@5: I saw that! LOL!

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