My earlier post on the Hobby Lobby decision sparked a lively discussion, so I went back and actually read the Court's opinion. Not much there that I didn't already know, with one notable exception: I had believed that the Court invented the idea that corporations are people out of whole cloth, and that turns out not to be true. It turns out that there is a law called the Dictionary Act, enacted in 1871, which says:
the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;That would seem to make it pretty open-and-shut: according to the law, corporations are persons. Right?
No.
In 1897, the Indiana legislature almost passed a bill that would have defined the mathematical constant pi to be 3. (The popular story that some state actually did pass such a law turns out to be a myth.) But if the law had passed that would not in fact have changed the value of pi. It would still be 3.14159265... notwithstanding what the law said. And the fact of the matter, law or no law, is that corporations cannot hold religious beliefs because corporations are not conscious entities.
This reference, the Court submits, incorporates the definition of “person” found in the Dictionary Act, 1 U. S. C. §1, which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” See ante, at 19–20. The Dictionary Act’s definition, however, controls only where “context” does not “indicat[e] otherwise.” §1. Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” 42 U. S. C. §2000bb–1(a) (emphasis added). See also §§2000bb–2(4), 2000cc–5(7)(a).12 Whether a corporation qualifies as a “person” capable of exercising religion is an inquiry one cannot answer without reference to the “full body” of pre-Smith “free-exercise caselaw.” Gilardi, 733 F. 3d, at 1212. There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations. [Emphasis added.]But what about churches? Read on:
Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious ex- emption from a generally applicable law, whether under the Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opin- ion concurring in part and dissenting in part).
The First Amendment’s free exercise protections, the Court has indeed recognized, shelter churches and other nonprofit religion-based organizations.14 “For many individuals, religious activity derives meaning in large meas- ure from participation in a larger religious community,” and “furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment). The Court’s “spe- cial solicitude to the rights of religious organizations,” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 14), how- ever, is just that. No such solicitude is traditional for commercial organizations.15 Indeed, until today, religiousexemptions had never been extended to any entity operating in “the commercial, profit-making world.” Amos, 483 U. S., at 337.16
The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. See 42 U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Air lines, Inc. v. Hardison, 432 U. S. 63, 80–81 (1977) (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.17 One can only wonder why the Court shuts this key difference from sight.
Commenter Publius asked:
I vote for option 2.
With regards to my charge of hypocrisy because Hobby Lobby's 401k plan invests in companies that make contraceptives to which its owners claim to be morally opposed, Publius writes:
What is the essence of business organization that eliminates religious rights?The answer is right there in the question: it's a business organization, not a religious organization. If a group of people get together for the express purpose of exercising a religious faith (as in a church) that reduces the possibility of religious conflict (thought it does not eliminate it entirely). If a group of people get together to engage in commerce then it is all but inevitable that, if those people do not check their religion at the door then there will be conflict. It is specifically illegal to discriminate in hiring on the basis of religious beliefs, and the chances that you will end up by chance with a group of employees whose religious beliefs align with those of the company's owners is indistinguishable from zero. There are only two possible ways to resolve this inevitable conflict: 1) resolve it arbitrarily in favor of one group or another. This is what the Supreme Court as done. It has resolved the conflict arbitrarily in favor of owners at the expense of employees. Or 2) do what the country has done successfully for over 200 years and keep commercial companies secular.
I vote for option 2.
With regards to my charge of hypocrisy because Hobby Lobby's 401k plan invests in companies that make contraceptives to which its owners claim to be morally opposed, Publius writes:
Claim 1: Hobby Lobby is an investor in drug makers that make the drugs they object toI must confess that I am not well versed in the subtleties of 401k law. But this site says:
Truth 1: The HL employee 401(k) plan is a separate trust, and is neither owned or controlled by Hobby Lobby.
Claim 2: Hobbly Lobby pays an insurance premium, which only indirectly enables others to make moral choices.
Truth 2: HL is self-insured, so it does not pay insurance premiums. It pays an insurance company a fee to administer the health plan, but all costs are paid by HL. There is not risk pooling, or comingling of funds - the cost of employee medical care comes directly from HL's income.
According to federal law, employers (known as "plan sponsors") are responsible for picking the 401k plan funds.So HL, if they chose to, could offer only funds that do not invest in birth control companies (surely such funds exist). That leaves open the possibility that (Publius again):
Hobby Lobby does not seek to control the moral choices of others.That is not consistent with being Christian. Seeking to control (at least indirectly) the moral choices of others is part and parcel of Christian doctrine, as Publius himself points out:
Some religions require participation in public life - say, Christianity, which has the Great Commission to go forth and spread the Good News to all nations.Nonetheless, now that I've looked into it a little further it does seem that the preponderance of the evidence is that the Hobby Lobby folks actually are not trying to foist their beliefs on others. So I withdraw and apologize for my earlier speculation that they are motivated by money and patriarchy.
I don't withdraw the charge of hypocrisy because, as I said, AFAICT Hobby Lobby could, if it chose to, constrain its 401k to not invest in birth control, but it doesn't. They could also choose to not self-insure, which would put additional distance between themselves and the sinful behavior of their employees. Whether or not this would be enough to satisfy them or their god I cannot know, which is exactly the problem. No one can know that except the owners of Hobby Lobby. Which is exactly why the best way to insure everyone's religious freedom is to keep it in the church, the home, and perhaps in the town square. But not in the office.
The definition - and concept - of a "corporation as a person" is a legal fiction, an abstraction. The concept is a tool that allows one to usually make the right decision when applied to the law. It doesn't always give the right answer - the Obama administration has been busy trying to indict corporations with criminal offenses - which seems silly, as corporations can't go to jail (so the individuals inside the corporations who committed the criminal acts should be indicted).
ReplyDeleteThen we have the "closely held" corporation - which is defined by the IRS as a corporation that has 50% of the value of its outstanding stock directly or indirectly owned by five or fewer individuals at any time during the last half of the tax year. It also cannot be a personal-service corporation.
Now, can a corporation have a religion? Sure - we just pass a law that defines a corporation as having the usual characteristics (limited liability, double-taxation, etc.) plus "it can also be a member of a religion."
Problem solved!
This is, in effect, what the Supreme Court did in the Hobby Lobby decision - but for closely held corporations only.
Why that is reasonable:
1) Corporations are abstractions, not reality. People are real. The ACA mandate applies to real people, not an abstraction.
2) Given the small number of owners, one can identify and associate a religion with the owners; these owners are also more likely to be involved in day-to-day operations of the corporation. For larger corporations, you have the problem of dilution and diffusion - you cannot identify a religious belief with large numbers of shareholders; these shareholders are also likely to be passive owners and not involved in day-to-day operations.
3) The ACA mandate violated the RFRA, as there are alternative, least restrictive ways to further the "compelling government interest." A couple of these would be to A) impose a tax and have the federal government pay for contraception, B) require companies to pay all employees an extra $6 a month (which the employees can use for any purpose).
In addition to defining a corporation differently, there is also a natural rights argument to be made. The First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;". That would include creating a law defining what a corporation is! Otherwise, Congress could pass a law creating an association called a "Weigart" and make every U.S. resident a member - but unfortunately the Weigart is defined as not having a religion. So everyone loses their religious rights.
Recall this from my first post in this thread:
It matters not one whit that the religious people form a corporation, or are engaged in commerce - their rights are unalienable and Congress is prohibited from infringing on those rights.
In this view, religious rights are attached to the person - and Congress cannot separate the person from their religious rights (unalienable). Forming a business or engaging in commerce cannot be used by Congress as reasons to separate you from your rights.
Regarding Ginsberg's statement:
ReplyDeleteUntil this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious ex- emption from a generally applicable law, whether under the Free Exercise Clause or RFRA.
I would assert that, in the past, no Presidential adminstration would have tried to impose a contraceptive mandate on corporations - it would have been considered immoral to do so.
The contraceptive mandate of the ACA was not written into the law by Congress. It is an administrative rule, created by the Obama administration. Consistent with the Obama administration's amoral and irreligious beliefs and behavior, wrote the contraceptive mandate - and sought to apply it to corporations and churches - including the Catholic Church, Catholic Charities, Catholic hospitals, and Catholic schools (the court case regarding this hasn't reached the Supreme Court yet). The Obama administration, unable to achieve their goals via the democratic process and legislation, sought to decide the moral question by administrative fiat - to impose on everyone a form of paganism (which includes ritual human sacrifice). Obama, Kathleen Sebelius (Secretary of HHS), and the rest of his administration thought nothing wrong about doing that - and still do not see anything wrong in doing that. This is a a new low in upholding the oath of office, and a violation of American tradition and basic fairness.
So, that is why their has been no prior litigation on the topic.
> If a group of people get together for the express purpose of exercising a religious faith (as in a church) that reduces the possibility of religious conflict (thought it does not eliminate it entirely). If a group of people get together to engage in commerce then it is all but inevitable that, if those people do not check their religion at the door then there will be conflict.
Congress does not get to define what a religion is, what forms of relgious expression are, or what are religious ministries. A lot of people consider their business to be a part of their religious ministry. It is also irrelevant if people exercise their rights it leads to conflict; consider this with another right, such as voting: "If we give these people the right to vote, their will be conflict." No, those are their rights - it doesn't matter what the consequences are.
> Corporations are abstractions, not reality. People are real. The ACA mandate applies to real people, not an abstraction.
ReplyDeleteI don't think you wrote what you meant here. The ACA mandate under discussion applies to corporations. Corporations are, as you say, abstractions. So the mandate applies to abstractions, not real people, which is the exact opposite of what you said.
> Problem solved!
That depends on what you think the problem is. You think the problem is the undue burdening of the religious beliefs of the owners of Hobby Lobby. I think the problem is the arbitrary and capricious favoring of the religious beliefs of corporate owners over the beliefs of their employees. Maybe we'll just have to agree to disagree about that.
> there are alternative, least restrictive ways to further the "compelling government interest."
In principle, maybe. But as a practical matter it is not currently possible because the Republicans want to get rid of the ACA by any means necessary, up to and including keeping the broken parts broken in the hope that will diminish public support.
Besides, why would a tax to pay for birth control, or giving employees a birth control allowance (where did you get that $6 figure by the way?) be any less of an undue burden on religion than the employer mandate? (Feel free to treat that as rhetorical question.)
>According to federal law, employers (known as "plan sponsors") are responsible for picking the 401k plan funds.
ReplyDeleteSo HL, if they chose to, could offer only funds that do not invest in birth control companies (surely such funds exist). That leaves open the possibility that (Publius again):
Hobby Lobby does not seek to control the moral choices of others.
That is not consistent with being Christian. Seeking to control (at least indirectly) the moral choices of others is part and parcel of Christian doctrine, as Publius himself points out:
Some religions require participation in public life - say, Christianity, which has the Great Commission to go forth and spread the Good News to all nations.
A couple of points here.
Currently, Christianity is voluntary (this was not always the case - in Europe). So Christians communicate the good news - but they do not seek to coerce, force, or control others into the religion.
Second, America has a long history of immigrants coming here to avoid religious persecution - recall the Pilgrims on the Mayflower in 1620. The American tradition is one of religious tolerance and liberty. What you believe is your own business and others do not seek to force their religious beliefs on you. So there have been successive waves of Quakers, Lutherans, and more immigrating to America to enjoy religious liberty.
>I don't withdraw the charge of hypocrisy because, as I said, AFAICT Hobby Lobby could, if it chose to, constrain its 401k to not invest in birth control, but it doesn't. They could also choose to not self-insure, which would put additional distance between themselves and the sinful behavior of their employees.
You're not getting it. The owners of Hobby Lobby don't seek to control their employees; what employees do with their money is the employee's business only - whether that is sinful is between the employee and God. So employees can buy and consume drugs and terminate a fertalized human egg - that is their choice, and the consequences are between them and their God. This is religious tolerance.
Hobby Lobby wants the same respect in return - do not force them to pay for, or otherwise participate in, what their conscience informs them is immoral and sinful behavior. An analogy here would be the owners of Hobby Lobby being against the death penalty - do not force them (at gunpoint) to throw the switch on the electric chair (find someone else).
As for the company choosing the funds the 401(k) can invest in, that comes down to are you going with Fideltiy or Vanguard. They also have an additional legal duty here - a fiduciary duty to act in the best interest in the 401(k) participants. In any case, making a wide range of funds available is not a moral problem - the employees choose what to do with their own money (and are responsible for any supernatural consequences of their choices).
As for choosing not to self-insure - this would perhaps be a moral alternative if the Supreme Court decision went the other way and they would be forced to pay for the 4 drugs that terminate a fertalized human egg. They could also choose not to offer health insurance at all. This has it's own moral questions.
However, at the time Hobby Lobby setup its self-insured health plan, it was not considered a possibility that a future President would impose a administrative rule that requires companies to pay for abortion. Such behavior by a President was considered unconscionable not too long ago.
> The contraceptive mandate of the ACA was not written into the law by Congress. It is an administrative rule, created by the Obama administration. Consistent with the Obama administration's amoral and irreligious beliefs and behavior, wrote the contraceptive mandate - and sought to apply it to corporations and churches - including the Catholic Church, Catholic Charities, Catholic hospitals, and Catholic schools
ReplyDeleteAnd then almost immediately backed off from that position, so this is a straw man.
BTW, the Obama administration is not amoral, its just that its morals are different from those of the owners of Hobby Lobby (and, I gather, yours). It is irreligious, but that is because the First Amendment requires it to be. The United States is not a theocracy (notwithstanding that many Christians would very much like to see it become one).
> The Obama administration, unable to achieve their goals via the democratic process and legislation, sought to decide the moral question by administrative fiat - to impose on everyone a form of paganism (which includes ritual human sacrifice).
And just when I was starting to think you were a reasonable person. Ritual human sacrifice? Imposing a form of paganism on everyone? Seriously?
> Congress does not get to define what a religion is, what forms of relgious expression are, or what are religious ministries.
That's true. But they do get to regulate commerce between the several states.
> A lot of people consider their business to be a part of their religious ministry.
Well, you see, this is exactly the problem. A lot of people consider it part of their religious ministry to impose Sharia law on the entire planet. Lines must be drawn somewhere. And in this case, the line is (or at least should be) drawn once you start to hire employees.
> It is also irrelevant if people exercise their rights it leads to conflict
Not if you care about maintaining civilization. The law is chock-full of limits on fundamental rights in the interest of minimizing conflicts.
> consider this with another right, such as voting: "If we give these people the right to vote, their will be conflict."
Yeah? How exactly would that conflict occur?
> Currently, Christianity is voluntary
Only in some places and for some people. It's voluntary for me, but that's because I'm an adult living in Northern California. For a minor with fundamentalist parents, or someone living in the deep south, being a Christian (or at least pretending to be one) can be necessary for survival.
And it's pretty clear that many Christians aspire to make it non-voluntary, c.f. all the Christians trying to make abortion illegal.
> The owners of Hobby Lobby don't seek to control their employees
That may be true (I don't know what is in their heart of hearts) but irrelevant. Just because HL doesn't seek to control their employees, that does not alter the fact that the Supreme Court has ruled that the religious interests of business owners trump the religious interests of their employees. Business owners can use this newly acquired power to control the choices of their employees even if the owners of Hobby Lobby elect not to exercise that power. Personally, if I were an employee, I would not want to have to rely on the good will of my employer to protect my religious liberty.
> requires companies to pay for abortion
Another straw man. The drugs in question do not induce abortion. HL is simply wrong about that. This is not relevant to the matter at hand because people are entitled to believe false things as part of their religion (in fact, that is almost the *definition* of a religious belief: a belief held in the absence of evidence or in contradiction to the evidence). But you are not entitled to assume false things in a civilized discussion about the law.
>> Corporations are abstractions, not reality. People are real. The ACA mandate applies to real people, not an abstraction.
ReplyDelete>I don't think you wrote what you meant here. The ACA mandate under discussion applies to corporations. Corporations are, as you say, abstractions. So the mandate applies to abstractions, not real people, which is the exact opposite of what you said.
The "abstraction" cancels out. Or perhaps, "opens up" to reveal real people inside.
To follow your logic, "the madate applies to abstractions, not real people" - then, well, the owners of Hobby Lobby would not be bound by the law, as they are real people. Abstractions are not capable of locomotion; it requires real people to sign checks.
> I think the problem is the arbitrary and capricious favoring of the religious beliefs of corporate owners over the beliefs of their employees.
It solves you hangup with closely held corporations not being allowed to have a relgion. Change the definition, and corporations can have a religion.
You have not demonstrated how the religious beliefs of the employees have been infringed - in even the smallest amount - for they have not been.
>> there are alternative, least restrictive ways to further the "compelling government interest."
>In principle, maybe. But as a practical matter it is not currently possible because the Republicans want to get rid of the ACA by any means necessary, up to and including keeping the broken parts broken in the hope that will diminish public support.
The contraceptive mandate was an administrative rule by the HHS. As such, the HHS could modify it.
If the ACA can not be amended now, then perhaps President Obama should have used a different strategy in getting a health care law passed.
>Besides, why would a tax to pay for birth control, or giving employees a birth control allowance (where did you get that $6 figure by the way?) be any less of an undue burden on religion than the employer mandate? (Feel free to treat that as rhetorical question.)
The answer to that is not necessarily rational - as people are not rational in all situations (but they are generally consistent in their irrationality). That's where the Harvard morality reserach comes into play.
$6 would pay 2/3 of a 1 month supply of birth control pills
http://i.walmartimages.com/i/if/hmp/fusion/customer_list.pdf
>> The contraceptive mandate of the ACA was not written into the law by Congress. It is an administrative rule, created by the Obama administration. Consistent with the Obama administration's amoral and irreligious beliefs and behavior, wrote the contraceptive mandate - and sought to apply it to corporations and churches - including the Catholic Church, Catholic Charities, Catholic hospitals, and Catholic schools
ReplyDelete>And then almost immediately backed off from that position, so this is a straw man.
Not a straw man at all, as the Obama Administration is still putting on a defense in the CBA v. Sebellius et al.
>BTW, the Obama administration is not amoral, its just that its morals are different from those of the owners of Hobby Lobby (and, I gather, yours). It is irreligious, but that is because the First Amendment requires it to be.
A false moral eqivalency.
The First Amendment does not require the government to be irreligious; it requires it to be areligious.
>The United States is not a theocracy (notwithstanding that many Christians would very much like to see it become one).
And "many" atheists would like the United States to become a communist dictatorship.
Any statement with "many of X" is usually non-informative; one needs to examine the entire population, not just a part of it.
>> The Obama administration, unable to achieve their goals via the democratic process and legislation, sought to decide the moral question by administrative fiat - to impose on everyone a form of paganism (which includes ritual human sacrifice).
>And just when I was starting to think you were a reasonable person. Ritual human sacrifice? Imposing a form of paganism on everyone? Seriously?
Herein lies the paradox. I am a reasonable person. I've also had some of the finest education available in the United States. Which makes me one of the most educated people in the history of the world (so far).
Obama's paganism should be perhaps described as neo-paganism for clarity; specifically, Humanistic Paganism.
Ritual human sacrifice is being posted on youtube and contests are being held for the best video. It's a model of their behavior (refer to George Box quote).
>> Congress does not get to define what a religion is, what forms of relgious expression are, or what are religious ministries.
ReplyDelete>That's true. But they do get to regulate commerce between the several states.
And Congress gets to coin money. Relevance?
>> A lot of people consider their business to be a part of their religious ministry.
>Well, you see, this is exactly the problem. A lot of people consider it part of their religious ministry to impose Sharia law on the entire planet. Lines must be drawn somewhere. And in this case, the line is (or at least should be) drawn once you start to hire employees.
Mixed metaphor. The owners of HL never sought to control government and impose their religious views; indeed, the owners of HL were seeking to stop the federal governement for infringing on their religious liberty.
>> consider this with another right, such as voting: "If we give these people the right to vote, their will be conflict."
>Yeah? How exactly would that conflict occur?
Seriously? You've seen it in your lifetime. In addition, school desegreation led to "white flight" to the suburbs, resulting in decline and decay of central cities. The positive is that people had their rights restored - this had to be done, despite any negative consequences. If they are your rights, you are due them immediately.
>> Currently, Christianity is voluntary
ReplyDelete>Only in some places and for some people. It's voluntary for me, but that's because I'm an adult living in Northern California. For a minor with fundamentalist parents, or someone living in the deep south, being a Christian (or at least pretending to be one) can be necessary for survival.
You have it exactly backwards. To quote Ruben Alvarado at length:
Inquisition! The very word stands as a monument to all that was wrong with historic Christendom. The legitimacy of the modern age is grounded partly in its – supposed – elimination of an Inquisition from society. Freedom of thought, speech, inquiry, conscience, religion is liberalism’s leading credential.
Yet in reality any public order requires an Inquisition of one sort or another, because every public order is the expression of a belief, to which one has to subscribe in order to be accepted. The very societies which most claim to defend freedom of thought are those which strive to impose the most dogmatic systems of thought. Our public schools catechize a very definite, coherent, comprehensive belief-system. Its metaphysic is the idea that man is the measure of all things; that he is the product of evolution; that he is thus a part of nature and subordinate to it. This explains modern society’s worship of sex. Its ethic is the dogma of consent: anything adults (the age limit gets lower all the time) agree to is legitimate. The juridical expression of this dogma is the ideal of human rights. The political expression is democracy: a majority vote among the adult population is all that is needed to legitimate any course of action. Conversely: nothing is legitimate that does not command this majority vote. Such are the hard and fast loci communes to which one must render appropriate lip service if he is to find acceptance in the Open Society.
Thus the apparent paradox: the tolerant, liberal society is the very one in which specific dogmas must be adhered to if one is not to be silenced and cut off from the community. The result of freedom of religion is political correctness. The Inquisition is in session, and in fact always has been; only the criteria have changed.
It is far easier to "go along and get along" with secular atheism that it is to be a Christain. Christains are increasingly harrassed at school, at work, and at their homes.
>And it's pretty clear that many Christians aspire to make it non-voluntary, c.f. all the Christians trying to make abortion illegal.
Outlawing abortion is not related to legislating Christianity as a State relgion. Nor is outlawing capital punishment.
> The owners of Hobby Lobby don't seek to control their employees
ReplyDelete>.. . . Just because HL doesn't seek to control their employees, that does not alter the fact that the Supreme Court has ruled that the religious interests of business owners trump the religious interests of their employees. Business owners can use this newly acquired power to control the choices of their employees even if the owners of Hobby Lobby elect not to exercise that power. Personally, if I were an employee, I would not want to have to rely on the good will of my employer to protect my religious liberty.
No, the Supreme Court ruled that federal government could not infringe on the religious liberties of the owners of Hobby Lobby, a closely-held corporation. The religious liberty, or the choices the employees make, was not affected at all.
In the United States, freedom of religion has always included – and should always include – the right to live out one’s religion and act according to one’s conscience outside the walls of one’s house of worship. Every single day, millions of Americans are motivated by their faith to go and serve the neediest among us. The good works of these individuals of faith can be seen in soup kitchens, hospitals, schools, hospices – and, yes, family-owned businesses.
>> requires companies to pay for abortion
>Another straw man. The drugs in question do not induce abortion. HL is simply wrong about that.
Opinions will vary on that.
> it requires real people to sign checks.
ReplyDeleteActually, it doesn't. I haven't seen a paycheck signed by a human in decades. But leaving that technical quibble aside, yes, it requires real people to make decisions on behalf of the company (because, of course, the company is not a real person no matter what the law says). However:
> The "abstraction" cancels out. Or perhaps, "opens up" to reveal real people inside.
No, it doesn't. That's the *whole point*. The people who make the decisions on behalf of the company are *shielded from liability* for the consequences of their decisions (with a very few exceptions). That is the reason we invented companies in the first place.
> the owners of Hobby Lobby would not be bound by the law
That's exactly right. They are not bound by the ACA (except by the individual mandate). The *company* is bound by the ACA. The actions of the company's *management* are thus constrained by the ACA, but the actions of the *owners* are not. The owners can *choose* to appoint themselves as the company's managers (at which point they become bound by the law) but nothing forces them to do that. They could hire someone to run the company for them.
> You have not demonstrated how the religious beliefs of the employees have been infringed
They are being deprived of a benefit to which they would otherwise be entitled by law *solely* because of someone else's religious beliefs. That infringes on their right to conduct their lives free from the coercive influence of someone else's religious beliefs.
> The contraceptive mandate was an administrative rule by the HHS.
That's a red herring. The process by which the law came to be the law doesn't change the fact that it is the law.
> The First Amendment does not require the government to be irreligious; it requires it to be areligious.
OK, so I need to brush up on my latin prefixes. The Obama administration is not irreligious (Barack Obama is a self-identified Christian, and even his detractors accuse him of being, at worst, a Muslim.) It is areligious, just as the Constitution requires.
> Ritual human sacrifice
Enough. Calling abortion "ritual human sacrifice" is like calling the eucharist "ritual cannibalism." Even though it may be technically correct, it's deeply disrespectful and not constructive. We can have a separate discussion about abortion if you like, but that's not what this is about. The fact of the matter is that, at least for now, women have a constitutional right to reproductive freedom, and we all agree that this is counter to the religious beliefs of HL's owner, and that they are entitled to hold those beliefs. There is no need to throw emotionally charged epithets into the mix.
> > they do get to regulate commerce between the several states.
> Relevance?
That is the Constitutional basis for their power to pass the ACA.
> the owners of HL were seeking to stop the federal governement for infringing on their religious liberty
Adherents of Sharia law say exactly the same thing. The law against, say, cutting off the hands of thieves infringes on their religious liberty. Cutting off the hands of a thief is against the law EVEN IF THE THIEF IS A MUSLIM. So the law against cutting off people's hands does in fact infringe on the religious beliefs of Muslims. There are less extreme examples, e.g. laws against polygamy infringe on the religious beliefs of Muslims and Mormons.
[Ah, now I see why you're posting all this as separate comments. Blogger seems to have a new 4096-character limit on comments. Would you like to start writing guest posts instead?]
ReplyDelete> Christains are increasingly harrassed at school, at work, and at their homes.
Really? In their *homes*? Can you cite any data to support this claim?
In poll after poll, atheists are dead last (even behind Muslims!) in terms of how they are viewed along various measures of social acceptability (would you vote for one? Would you like to have one as a family member?) There are many cases of kids being disowned by their parents for coming out as atheists. Can you cite even a single case of a kid being disowned and thrown out onto the street because they came out as a Christian?
Are you a Christian? Have you ever been harassed for it?
> Outlawing abortion is not related to legislating Christianity as a State relgion
Seriously? "Not related"? You don't think that at least some pro-life people are motivated by a desire to have civil law reflect God's law? Have you never heard a Christian say "The United States is a Christian nation"? What do you think they mean by that if not that the civil law of the United States should be based on Christian beliefs?
> Opinions will vary on that.
Of course they will. But the *facts* will remain what they are. (We can have a separate discussion about these facts if you like too.)
ReplyDelete> The "abstraction" cancels out. Or perhaps, "opens up" to reveal real people inside.
>No, it doesn't. That's the *whole point*. The people who make the decisions on behalf of the company are *shielded from liability* for the consequences of their decisions (with a very few exceptions). That is the reason we invented companies in the first place.
Well, so what that they are shielded from liability? They're also subject to double taxation. So what? Why should any of that separate anyone from their religious rights? Humans use the "abstraction tool" in many places. The balance in your checking account is an abstraction. Government is an abstraction. Behind it all are real people - and you cannot shield your effect on real people by putting an abstraction in front, or around, them.
This circles around to the "definition of the abstraction." The abstract notion of a corporation can be redefined to add, ", and they can have religious beliefs." Now you have an abstraction with religious beliefs - like the Catholic Church. But you previously said this wasn't the issue - and I think one of your other comments [next post] advances understanding in a different direction.
>> the owners of Hobby Lobby would not be bound by the law
>That's exactly right. They are not bound by the ACA (except by the individual mandate). The *company* is bound by the ACA. The >actions of the company's *management* are thus constrained by the ACA, but the actions of the *owners* are not. The owners can *choose* to appoint themselves as the company's managers (at which point they become bound by the law) but nothing forces them to do that. They could hire someone to run the company for them.
I find this distinction between owners and management unpersuasive. Especially that, in the limiting case where 1 owner owns 100% of the company, you would still apply the requirement.
[miscellany - 4096 char limit...]
ReplyDelete>> The contraceptive mandate was an administrative rule by the HHS.
>That's a red herring. The process by which the law came to be the law doesn't change the fact that it is the law.
This was in answer to why this issue had never be litigated before (regarding your reference to Ginsberg's opinion). This rule would have never passed Congress.
>> Ritual human sacrifice
>Enough.
Agreed.
> calling the Eucharist "ritual cannibalism." Even though it may be technically correct
That is not actually technically correct. To understand the Eucharist, one must understand substance theory. When one understands that, all the historical arguments about transubstantiation seem incredibly silly!
>> You have not demonstrated how the religious beliefs of the employees have been infringed
ReplyDelete>They are being deprived of a benefit to which they would otherwise be entitled by law *solely* because of someone else's religious beliefs. That infringes on their right to conduct their lives free from the coercive influence of someone else's religious beliefs.
Ah, now perhaps this leads somewhere new.
The employees don't have a religious right (that they can enforce against their employer) for "a benefit" - that would be The Church of Free Stuff. Since the 1st Amendment protections are from the government, the employees couldn't bring suit on it anyhow [and they can completely avoid the coercive influence of the owners by choosing not to work for them].
You could say that the employees have a civil right -- that of equal protection of the laws (14th Amendment) -- which they would be deprived of given their employer's religious beliefs.
So then - which rights takes priority - the religious rights of the owners or the civil rights of the employees?
The Supreme Court did not rule on that.
1. The HL case was HL owners suing the federal government to protect their religious rights under the RFRA.
2. The court ruled that the federal government violated the RFRA, as the government's interest could be accomplished in a way that did not infringe on the religious rights of the owners.
3. Justice Kennedy, in is concurring opinion, pointed out one different way the government could accomplish it's goal without violated the RFRA - the "accomidation" created for non-profit corporations [also currently being litigated].
> the owners of HL were seeking to stop the federal governement for infringing on their religious liberty
ReplyDelete>Adherents of Sharia law say exactly the same thing. The law against, say, cutting off the hands of thieves infringes on their religious liberty. Cutting off the hands of a thief is against the law EVEN IF THE THIEF IS A MUSLIM. So the law against cutting off people's hands does in fact infringe on the religious beliefs of Muslims. There are less extreme examples, e.g. laws against polygamy infringe on the religious beliefs of Muslims and Mormons.
Jacobson v. Massachusetts (1905) is perhaps a better example. The Morman polyagamy ruling is Reynolds v. United States (1878). In the Wikipedia entry on Reynolds, the religious duty argument is summarized thusly:
The Court investigated the history of religious freedom in the United States and quoted a letter from Thomas Jefferson in which he wrote that there was a distinction between religious belief and action that flowed from religious belief. The former "lies solely between man and his God," therefore "the legislative powers of the government reach actions only, and not opinions." The court considered that if polygamy was allowed, someone might eventually argue that human sacrifice was a necessary part of their religion, and "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." The Court believed the First Amendment forbade Congress from legislating against opinion, but allowed it to legislate against action.
I think that's the point of your last paragraph. [note that the opinion states "against action," which can be distinguished from "compelling action"]
I agree with this.
However - I also agree that
1) If a government rule of general applicability will affect religious rights, the government should implement it in the least restrictive way.
1a) CorollaryWhy force someone to violate their religous beliefs when the government doesn't need to?
2) Even if government has the power to force someone to violate their religious beliefs (and it does), Congress should generally refrain from doing so.
Christians are increasingly harassed at school, at work, and at their homes.
ReplyDeleteReally? In their *homes*? Can you cite any data to support this claim?
at their homes.
I remembered the story wrong - it wasn't anti-christian protesters - it was environmental wackos who invaded an oil executives lawn with signs and torches to protest a oil pipeline.
So I withdraw "at their homes."
However, finding Christian harassment in the past few years is like fishing with dynamite:
Two tennagers assaulted by UCSB professor and suffer grand theft
Brendan Eich resigns as CEO of Mozilla
Protests against Catholic and Morman churches for California Prop. 8 support
Chick-fil-A faces protests after comments by COO Dan Cathy
Military priests face arrest for celebrating mass
and
DOD Bars 50 Priests from Administering Sacraments, Locks Up Eucharist; Priest Sues
US Army defines Christian ministry as domestic hate group"
Florida Teacher Suspended for Anti-Gay Marriage Posts on Personal Facebook Page
U.S. Airman punished for his faith
Government union wants Duck Dynasty fans fired
Hate crime: gay activists brutally beat christians in America
In poll after poll,
Out of time tonight to respond in detail. A short sketch might be that while Christians may not be outnumbered now, the instututions of society and popular culture are turning against them.
A couple of vignettes:
Democrats Vote Against God at Convention
Obama Leaves Out Under God from Gettsburg Address
Harry Reid Omits Under God in the Pledge
> Well, so what that they are shielded from liability?
ReplyDeleteSo there is a legal distinction between actions that a particular human takes on behalf of a company and the actions that that same humans takes on behalf of themselves. The abstraction does NOT "open up" to "reveal the people inside." The humans inside remain (mostly) hidden. And this fact is not a minor detail. It is in fact the WHOLE POINT. It's the REASON corporations exist.
> The abstract notion of a corporation can be redefined to add, ", and they can have religious beliefs."
Yes, you can pass a law saying that pi equals 3 too. That does not make it so. The word "belief" already means something in the English language. A corporation cannot have a religious belief any more than it can have a favorite food. To have a favorite food you have to have a digestive tract, and to have a belief you have to have a brain. Corporations have neither brains nor digestive tracts and so they can have have neither religious beliefs nor dietary preferences.
> I find this distinction between owners and management unpersuasive.
Well, I'm sorry about that. But that's the way it is. I don't know how many ways I can point out to you that this distinction is not only true, it is the very reason for the existence of corporations. You are, of course, free not to believe it, just as you are free not to believe that the universe is 13 billion years old. But both are true.
> This rule would have never passed Congress.
So what? The law that delegates this power to the executive DID pass Congress. There are a lot of laws on the books today that likely would not pass today's Congress. In fact, almost nothing can pass today's congress, so this is probably true of nearly every single law on the books today. That doesn't change the fact that those laws are, in fact, on the books.
> To understand the Eucharist, one must understand substance theory.
That may be, but to understand cannibalism all one has to do is consult a dictionary. But do you really want to get into an argument about transubstantiation? I thought we both agreed that slinging epithets was not going to be constructive.
> The employees don't have a religious right
I don't want to quibble too much over terminology, particularly since the word "religious" has so much baggage attached to it. Employees should IMHO have the right not to be arbitrarily constrained by the religious beliefs of their employers simply because they are employees. I don't care whether you want to call this a "religious" or a "civil" right.
> they can completely avoid the coercive influence of the owners by choosing not to work for them
Just as the owners can avoid conflicts with their religious beliefs by electing not to manage the company themselves. But the situation is not symmetric. We have non-discrimination laws on the books SPECIFICALLY so that employees should not have to make such choices. Company owners do NOT have similar legal protections. Running a company carries with it certain responsibilities, and if you don't like it your only recourse is not to run a company.
> the religious rights of the owners or the civil rights of the employees?
Clearly the latter, according to the law. It is explicitly illegal to discriminate against people on the basis of their religion. So even if I have a deeply held religious beliefs that anyone who is not a member of my religion is the spawn of satan, I may not legally apply that belief in my hiring decisions. Even the Constitution itself *explicitly* forbids any religious test for holding public office. In public office and in commerce, for the greater good, everyone needs to check their religion (or lack thereof) at the door.
ReplyDelete> The Supreme Court did not rule on that.
They effectively did. Why? Because:
> the government's interest COULD be accomplished in a way that did not infringe on the religious rights of the owners [emphasis added]
It is not necessary for the governments interest to ACTUALLY BE accomplished (and in this case it is quite clear that the government's interests will not be accomplished). The only requirement is that the government's interests COULD be accomplished. What does "could" mean? Well, they didn't say (which is one of the reasons this ruling is such a mess). But clearly "could" includes the case where achieving the government's interest is a political impossibility. So a reasonable interpretation of the ruling is: as long as achieving the government's interest is logically possible, then the religious rights of corporate owners trump the rights of employees.
> Why force someone to violate their religous beliefs when the government doesn't need to?
Well, this is the nub of our disagreement. I don't believe anyone is being forced to do anything. Owning a corporation is voluntary. And managing a corporation that you own is doubly voluntary. If you don't like doing what the job requires, hire a shabbas goy to sign the checks.
What is to prevent HL now from requiring its employees to sign a pledge that they will not use birth control? How is using an HL paycheck to procure birth control any different from using HL insurance money to procure birth control?
> Even if government has the power to force someone to violate their religious beliefs (and it does), Congress should generally refrain from doing so.
Really? Do you think Muslim communities in the U.S. should be allowed to institute Sharia law amongst themselves?
> However, finding Christian harassment in the past few years is like fishing with dynamite:
I'll respond to that in a separate post. You've given me a lot of homework.
>> Well, so what that they are shielded from liability?
ReplyDelete>So there is a legal distinction between actions that a particular human takes on behalf of a company and the actions that that same humans takes on behalf of themselves. The abstraction does NOT "open up" to "reveal the people inside." The humans inside remain (mostly) hidden. And this fact is not a minor detail. It is in fact the WHOLE POINT. It's the REASON corporations exist.
...but corporations are an invention, a definition in the law. Anything that can be defined can be re-defined. Individuals inside of corporations can be arrested for the actions they take on behalf of the corporations.
You cannot create an artificial artifice, a scam, to strip people of their religious rights - at least for closely held corporations. If you could, then the employees should be stripped of the same rights. So you couldn't speak of "employees losing thei religious rights," as, according to you, they lost them when the sought employment.
>> The abstract notion of a corporation can be redefined to add, ", and they can have religious beliefs."
>Yes, you can pass a law saying that pi equals 3 too.
Not analogous - pi is a mathematical defitnition, the ratio of the circumference to the diameter of a cirle. In the logical system of Euclidian geometry, it is fixed.
A "corporation" is the complete invention of the law - and laws can be changed. There is no logical or mathematical bounds to revising these laws.
>That does not make it so. The word "belief" already means something in the English language. A corporation cannot have a religious belief any more than it can have a favorite food. To have a favorite food you have to have a digestive tract, and to have a belief you have to have a brain. Corporations have neither brains nor digestive tracts and so they can have have neither religious beliefs nor dietary preferences.
I bet you would find the favorite food of Kellog's is Corn Flakes. The favorite food of Heinz is ketchup.
The state bird of Arizona is the Cactus Wren; the state bird of Michigan is the Red-Winged Blackbird.
> I find this distinction between owners and management unpersuasive.
ReplyDeleteWell, I'm sorry about that. But that's the way it is. I don't know how many ways I can point out to you that this distinction is not only true, it is the very reason for the existence of corporations. You are, of course, free not to believe it, just as you are free not to believe that the universe is 13 billion years old. But both are true.
>> This rule would have never passed Congress.
>So what? The law that delegates this power to the executive DID pass Congress. There are a lot of laws on the books today that likely would not pass today's Congress.
So it was passed in an anti-democratic way. Congress cannot delegate it's legislative making powers to the executive branch. When this prohibition is breached is a matter of degree, determined by the courts.
>> To understand the Eucharist, one must understand substance theory.
>That may be, but to understand cannibalism all one has to do is consult a dictionary. But do you really want to get into an argument about transubstantiation? I thought we both agreed that slinging epithets was not going to be constructive.
I actuall think we'd agree on transubstatiation!
>> The employees don't have a religious right
>I don't want to quibble too much over terminology, particularly since the word "religious" has so much baggage attached to it. Employees should IMHO have the right not to be arbitrarily constrained by the religious beliefs of their employers simply because they are employees. I don't care whether you want to call this a "religious" or a "civil" right.
So, then, let's look at their religous rights before and after the HL decision:
Before the decision: every employee could consume the 4 drugs that terminate a fertilized human egg
After the decision: every employee can consume the 4 drugs that terminate a fertilized human egg
Before and After are the same - their rights have not been impacted.
> they can completely avoid the coercive influence of the owners by choosing not to work for them
ReplyDelete>Just as the owners can avoid conflicts with their religious beliefs by electing not to manage the company themselves. But the situation is not symmetric.
Owners can start a business in every state for any lawful purpose. You give them the choice of poverty vs. complying with an unccessarily restrictive law. This is fair?
>We have non-discrimination laws on the books SPECIFICALLY so that employees should not have to make such choices. Company owners do NOT have similar legal protections. Running a company carries with it certain responsibilities, and if you don't like it your only recourse is not to run a company.
Again, you give them the choice of running a business or poverty. I agree there is a power imbalance between employers and employees - those are addressed by many laws. HL complies with all of those.
The HL owners objected to paying for 4 drugs that terminate a fertilized human egg.
The HL owners do no object if the employee pays for it themselves.
Plus there are many other ways the government could provide these 4 drugs freely to women that don't create a moral issue for the HL owners. Why not choose one of those? [this is what the Supreme Court concluded]
This seems entirely consistent with:
The best way of achieving that is the First Law of Social Harmony: no one should attempt to impose their religious views on others without their consent. A corollary to the First Law is that government, which is empowered to to use violence to enforce the law, should not attempt to impose any religious views on anyone.
So why impose religious views on the HL owners without their consent? Why go out of your way to agitate Christians?
> the religious rights of the owners or the civil rights of the employees?
>Clearly the latter, according to the law. It is explicitly illegal to discriminate against people on the basis of their >>>religion. So even if I have a deeply held religious beliefs that anyone who is not a member of my religion is the spawn of satan, I may not legally apply that belief in my hiring decisions
That's a hiring decision, which is not under dispute.
[from the prior day]
ReplyDelete> Outlawing abortion is not related to legislating Christianity as a State relgion
>Seriously? "Not related"? You don't think that at least some pro-life people are motivated by a desire to have civil law reflect God's law?
Certainly, some people are motivated by their Christian beliefs to be pro-life. However, Christianity isn't necessary for this. There are pro-life atheists.
>> Opinions will vary on that.
>Of course they will. But the *facts* will remain what they are.
Yeah, the big bugaboo is always the interpretation of the facts, and the ethical framework used in the interpretation.
>(We can have a separate discussion about these facts if you like too.)
Ron, it's nice to know you're willing to discuss anything. In our future: Clog Dancing - Pro vs. Con ;-)
>> The Supreme Court did not rule on that.
ReplyDelete>They effectively did. Why? Because:
>> the government's interest COULD be accomplished in a way that did not infringe on the religious rights of the owners [emphasis added]
?It is not necessary for the governments interest to ACTUALLY BE accomplished (and in this case it is quite clear that the government's interests will not be accomplished). The only requirement is that the government's interests COULD be accomplished.
I strongly belief in this ruling, "could" is interpenetrated as "can". Justice Kennedy gave one alternative (the "accommodation" given to non-profit corporations). I gave you two others 1) levy a tax, and 2) require HL to pay all it's employees at extra $6-$9 a month. All of these are less restrictive methods of accomplishing the government goal; since it was an administrative rule to begin with, it can be changed quickly.
Now, if the "compelling government interest" COULD NOT be accomplished in a less restrictive way, then the government would not have violated the RFRA and the ruling would hav gone against HL.
>> Why force someone to violate their religious beliefs when the government doesn't need to?
ReplyDelete>Well, this is the nub of our disagreement. I don't believe anyone is being forced to do anything. Owning a corporation is voluntary. And managing a corporation that you own is doubly voluntary. If you don't like doing what the job requires, hire a shabbas goy to sign the checks.
Personal liberty, which is guaranteed to every citizen under U.S. Constitution and laws, consists of the right of locomotion, to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there, they will be protected under the law, not only their persons, but in their safe conduct. Any law that would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights, which the Constitution guarantees.
Hobby Lobby was created amd organized before the Obama administration - consistent the owners of HL to start a corporation for any lawful purpose. It was the Obama administration that later came in and changed the rules - deliberately creating an untenable choice for the owners of HL (and other businesses) and churches.
>What is to prevent HL now from requiring its employees to sign a pledge that they will not use birth control? How is using an HL paycheck to procure birth control any different from using HL insurance money to procure birth control?
Religious discrimination laws. The HL decision takes us back to the status quo of 2011. It wasn't so bad in 2011, was it?
>> Even if government has the power to force someone to violate their religious beliefs (and it does), Congress should generally refrain from doing so.
> Really?
This is consistent with your First Law of Social Harmony:
The best way of achieving that is the First Law of Social Harmony: no one should attempt to impose their religious views on others without their consent. A corollary to the First Law is that government, which is empowered to to use violence to enforce the law, should not attempt to impose any religious views on anyone.
>Do you think Muslim communities in the U.S. should be allowed to institute Sharia law amongst themselves?
No; religious communities do not have police power. Police power is derived from the sovereignty of the State. Any writing of Sharia law into private contracts is null and void when it contradicts 1) legislative law, or 2) common law.
P.S. I will be out for a couple of days.
ReplyDeleteUntil then, Luke? Where art thou, Luke?
> Anything that can be defined can be re-defined.
ReplyDelete> Not analogous - pi is a mathematical defitnition
What difference does that make? Mathematical definitions are just definitions, and you said (correctly) that anything that can be defined can be redefined. Why is it OK to redefine "religious belief" but not "pi"?
> Individuals inside of corporations can be arrested for the actions they take on behalf of the corporations.
Only if those actions were in and of themselves criminal acts. If the actions themselves were not criminal acts but merely resulted in damages (e.g. the BP oil rig disaster) then the individuals who made the decisions that led to the bad outcome are shielded from both civil and criminal liability.
> I bet you would find the favorite food of Kellog's is Corn Flakes.
That is implicitly redefining the phrase "favorite food." A favorite food is generally understood to be a food that one prefers to *eat*. Eating requires a digestive tract.
> So it was passed in an anti-democratic way. Congress cannot delegate it's legislative making powers to the executive branch.
Of course it can. And it has. On multiple occasions. The executive branch has broad discretion on a wide variety of matters, not just health care.
Heck, Congress has effectively delegated its Constitutional authority to declare war to the executive branch! Of course it can delegate its authority to decide the details of a health care program.
> I actually think we'd agree on transubstatiation!
I doubt that very much, but I welcome the discussion. Though I think we should take it off-line. My email address is easy to find.
> Before and After are the same
They are not the same. Before, every employee had a legal entitlement to have the cost of birth control covered by their health insurance. After, this former legal entitlement is now contingent on the religious beliefs of the owners of the company they work for.
> You give them the choice of poverty vs. complying with an unccessarily restrictive law.
Straw man. Poverty is not the only alternative to starting a company (and, for that matter, starting a company is hardly a guaranteed antidote to poverty). And, as I have already pointed out, if you start a company you are not required to actively manage it yourself.
> there are many other ways the government could provide these 4 drugs freely to women that don't create a moral issue for the HL owners. Why not choose one of those?
Because the legislative branch is gridlocked by the Republicans. Clearly the best solution would be to fix the law, but that is not an option.
> So why impose religious views on the HL owners without their consent? Why go out of your way to agitate Christians?
You'll have to ask a Republican legislator. I can only speculate about why they are being so intransigent.
> That's a hiring decision, which is not under dispute.
ReplyDeleteYes, but it is illustrative of the fact that the legal protections for religious freedom are not symmetric with respect to corporations and individuals. Corporations have duties and obligations *to* their employees that need not be reciprocated *by* the employee. This is indicative of the law's tacit recognition of the fact (and it is a fact) that humans have religious beliefs and corporations cannot.
> Christianity isn't necessary for this.
I didn't say it was necessary. What I said was that "many Christians aspire to make it [Christianity] non-voluntary." And I think this is clearly true. There are many other examples besides abortion prohibition: school prayer. So-called "creation science". Ten commandments monuments. I could go on and on.
> require HL to pay all it's employees at extra $6-$9 a month
How would that help? Either way, HL is being required to pay for birth control. What difference does it make if the payment is labelled as allowance or an insurance payment?
> The HL decision takes us back to the status quo of 2011.
Huh? How do you figure? The assignment of religious beliefs to for-profit corporations is unprecedented. That's the reason the HL decision was newsworthy.
> religious communities do not have police power
Yes, I know. That wasn't the question. The question was whether you thought they *should* have this power if all the parties mutually consent.
Do you think that Jehovah's Witness ought to be able to refuse blood transfusions for their children? Do you think Christian Scientists ought to be able to refuse all medical treatment for their children? Both of these are currently extant limits on religious freedom. Do you think they are right?
> Clog Dancing
I will defend to the death your right to clog dance free from state interference as long as you don't step on anyone's toes without their consent. :-)
>What difference does that make? Mathematical definitions are just definitions, and you said (correctly) that anything that can be defined can be redefined. Why is it OK to redefine "religious belief" but not "pi"?
ReplyDeletePerhaps I'm debating too much like an engineer - which goes like this: if you can find one counter-example, then your opponent's assertion is false.
So your assertion that "corporations can't have a religion" by definition can be falsified by
1) changing the written law that defines "corporation". One could view the Supreme Court doing that for close-held corporations.
2) reductionism - look below the legal label of "corporation" and discover the real people who form the organization - those people have religious rights attached to them.
2A) Congress and state legislatures cannot strip the religious rights from people by sham, scheme, or other artifice - so it's not permissible to give a label to a group of people, then declare that people with that label lost their religious rights.
2B) This reductionism is done when a court pierces the corporate veil due to various malfeasance.
What the Supreme Court decision was to strike a balance - which is something you support, as you have stated many times that no right is absolute. The balance is this:
1) Large corporations can't have religious rights (say, IBM, AT&T, or General Motors) - there are too many shareholders (so a court could never decide if there was a consensus religion), and most of them are passive shareholders not involved in management of the business.
2) Small, closely-held corporations can - as there are 5 or fewer shareholders (who control at least 50% of the stock) - so the a court could decide on a consensus religion for that small group. Some or all of those shareholders may also be involved in the day-to-day operations of the business (which makes the "business" more like "them").
2A) The RFRA was violated because the government has alternative, less restrictive ways to accomplish its goal without violating the religious liberty of the 5 owners of HL.
2B) Justice Kennedy noted that the "accommodation" the Obama Administration invented for non-profit corporations would likely be sufficient.
Why are some accommodations morally acceptable whereas others aren't? A long answer, in the next post.
So why are some of those accomidations morally acceptable whereas the existing rule was not?
ReplyDeleteTo answer that, one has to understand at least 3 principles of Christian moral decision making - a moral wrong:
1) Can be commited by action or inaction.
2) If the immoral outcome is directly attributable to one's action or inaction
3) The immoral outcome is reasonably foreseeable based on one's action or inaction
#2 and #3 are very familiar from legal tort law. The "immoral outcomes" are defined by the religion; let's treat them as postulates - in the HL case, they are the right to life and the santity of human life.
Let's consider different actions and use the above principles to determine if they are immoral or not:
A) Person A pays for Person B to obtain a drug that terminates a fertilized human egg, which Person B then consumes, resulting in the termination of a fertilized human egg.
A1. A's payment results in B obtaining the drug [directly attributable principle]
A2. It is reasonable foreseeable that B will consume this drug [foreseeable principle]
A3. The result - the termination of a fertilized human egg - is immoral [life postulates]
==> So A has commited an immoral act
B) Person A pays a tax levied by the government to pay for drugs that terminate fertilized human eggs. Person B uses this government benefit to obtain one of these drugs, consumes the drug, and a fertilized human egg is terminated.
B1. A cannot directly attribute the money it paid as tax as being the same money that B used to purchase the drugs [directly attributable principle]. This is also an example of comingling - a principle (recognized by courts) that once funds are deposited into a larger account, "comingling" occurs, and the funds lose any "directly identifiable" attributes.
==> A's action of paying the tax is a moral act
C) The government requires person A to pay Person B an extra $9 a month.
C1. One month, B uses this $9 to pay for a drug that terminates a fertilized human egg, consumes it, and the result is that a fertilized human egg is terminated.
C2. A could not foresee that B would use the $9 to do that - as B is free to use the $9 for any legal purpose.
C3. B could have used a different $9 to purchase the drug; one cannot directly attribute the purchase to the "extra $9" that "A paid. [directly attributalbe principle]
==> A's action in paying the extra $9 a month is a moral act
D) The government requires that, if Person A offers a health play to Person B, that the plan pay for 4 drugs that result in the termination of a fertilized human egg. However, Person A does not have to reimburse Person B for purchase of those drugs - instead, the plan administrator must pay those costs.
D1. It is foreseeable that the plan administrator will increase it's fee to A for the extra cost of paying for the 4 drugs
D2. It is directly foreseeable that this increased fee will be used by B to purchase a drug that terminates a fertilized human egg, consume it, and result in the termination of a fertilized human egg.
==> A's payment of the extra fee to the plan administrator is an immoral act.
So now the red light over your monitor is going off - how is D different from B? In case D, isn't the payment by A comingled in all of the other fees paid to the plan administrator? Furthermore, how is D different from C? Why the different moral outcome?
ReplyDeleteThis is resolved as follows:
1) You cannot avoid moral responsibility through an intermediary. If X pays money to Y, knowing that Y is going to transfer it to Z, and that enables Z to commit an immoral act, then X's act of paying Y is immoral. Person A knows that the increased fee paid to the plan administrator will be used for an immoral purpose.
This is why B is different from D [under case B, Person A cannot control the actions of the government]
2) The "plan administrator" is not a moral agent. The plan administrator does what it's told - per the contract or the law.
This is why C is different than D. [Under case C, Person B is a moral agent]
Now, this is self-consistent with the moral principles I outlined.
It is not necessarily logical - as moral reasoning is not always logical (see the trolley problem).
There are also other moral philosophy or ethics that could lead to different conclusions. The religion of a person often caries with it a specific moral philosophy.
>Eating requires a digestive tract.
ReplyDeleteFlesh-eating bateria do not have a digestive tract.
[Now that's thinking like an engineer!]
>> Before and After are the same
>They are not the same. Before, every employee had a legal entitlement to have the cost of birth control covered by their health insurance. After, this former legal entitlement is now contingent on the religious beliefs of the owners of the company they work for.
OK - so we can now agree that no employee's religious rights have been affected. Each employee retains the same moral agency he had in the "before" and "after" conditions.
What is different is a government entitlement, which you could argue is a civil right -- but it is not a religious right of any employee.
The Supreme Court didn't rule if the religious rights of the owners was superior to the employees' right to an entitlement. It ruled that if the government wants to create such an entitlement, it has to do it in another way.
>> there are many other ways the government could provide these 4 drugs freely to women that don't create a moral issue for the HL owners. Why not choose one of those?
>Because the legislative branch is gridlocked by the Republicans. Clearly the best solution would be to fix the law, but that is not an option.
It has nothing to do with the Republicans.
The Obama administration originally proposed the same rule that HL objected to for both for-profit and non-profit corporations. After many religious institutions strongly objected, the Obama administration came up with an "accommodation" for non-profit corporations. As Justice Kennedy pointed out, the administration could have offered the same accommodation to for-profit corporations. Congress doesn't have to pass a law at all.
So why would the Obama administration choose to treat the two groups - for-profit vs. non-profit - corporations differently?
>> So why impose religious views on the HL owners without their consent? Why go out of your way to agitate Christians?
>You'll have to ask a Republican legislator. I can only speculate about why they are being so intransigent.
I think we have to ask Obama.
>I didn't say it was necessary. What I said was that "many Christians aspire to make it [Christianity] non-voluntary." And I think this is clearly true. There are many other examples besides abortion prohibition: school prayer. So-called "creation science". Ten commandments monuments. I could go on and on.
ReplyDeleteAgain, one could say that "many atheists" aspire to make atheism non-voluntary. The problem is "many" is non-descriptive in describing the part from the whole. Is that 1% of atheists or 95% of atheists?
One can also be pro-life without the Christian moral framework. Which is why pro-life atheists exist. So public opposition to abortion isn't evidence of a Christian conspiracy to establish a theocracy, as many non-Christians are also pro-life.
>Yes, I know. That wasn't the question. The question was whether you thought they *should* have this power if all the parties mutually consent.
Let's review the question:
>>Do you think Muslim communities in the U.S. should be allowed to institute Sharia law amongst themselves?
I believe I gave a complete answer to this:
No; religious communities do not have police power. Police power is derived from the sovereignty of the State. Any writing of Sharia law into private contracts is null and void when it contradicts 1) legislative law, or 2) common law.
To be clear - the first sentence is in regards to public power - police power. The second sentence is in regards to private agreements - contracts. So again - no, even if all the parties mutually agree to writing Sharia law into a private contract, any part of that contract that violates 1) the law, or 2) common law, is null and void.
> The HL decision takes us back to the status quo of 2011.
ReplyDelete>Huh? How do you figure? The assignment of religious beliefs to for-profit corporations is unprecedented. That's the reason the HL decision was newsworthy.
The administrative rule, being voided, resets the legal environment to that of 2011.
I agree it does set a precedent that closely-held corporations gained protection under the RFRA.
Why do you, and Justice Ginsberg, and others (say, Senator Chuck Schumer) go out of your way to emphasize for-profit? Why does the for-profit or non-profit status of a corporation matter?
> You give them the choice of poverty vs. complying with an unccessarily restrictive law.
>Straw man. Poverty is not the only alternative to starting a company (and, for that matter, starting a company is hardly a guaranteed antidote to poverty). And, as I have already pointed out, if you start a company you are not required to actively manage it yourself.
Hobby Lobby existed before the Obama administration. So the choices of the owners of HL were made in a different legal environment. Furthermore, the owners of HL believed that their religious ministry - of owning and running Hobby Lobby - was protected by the restrictions placed on Congress by the the 1st Amendment.
This deserves a longer response, however. Which revolves around liberty.
Liberty is 1) freedom of action, 2) absence of coercion, and 3) not being dependent on others. The Green family wanted to exercise it's liberty by starting a business to provide the communities they serve with arts and crafts supplies. By doing this, they are doing something they like doing (freedom of action), they are providing a public service (part of their Christian ministry), and have sought to run the workplace with higher ethical standards (ministry) - even if it reduces profit. If they are successful, they will not be dependent on others. Every State allows corporations to be formed for any lawful purpose.
It violates their liberty to make it impossible for them to:
1) start a company
2) manage a company
3) earn a profit
In each of these, they want to start a company, to manage it, and earn a profit. That is within their rights of liberty.
Explain to me how making it impossible for them to do so isn't just simple religious discrimination? That the government is creating a legal framework so objectionable to Christianity that no Christian can own a business, run a business, or earn a profit doing so? "You Christians - you stay at home or in church - you aren't allowed to be a Christian in public life or in business!"
> Perhaps I'm debating too much like an engineer
ReplyDeleteAre you an engineer? You seem to have a very extensive knowledge of the law, so I was guessing you were a lawyer.
You do seem to have a tendency to get lost in the weeds. Both lawyers and engineers do this, except that engineers usually do it inadvertently whereas lawyers often do it deliberately.
> What the Supreme Court decision was to strike a balance
No, it didn't, notwithstanding claims to the contrary. This is the part you fail to understand.
> one has to understand at least 3 principles of Christian moral decision making
Your detailed analysis is fascinating but completely irrelevant. Why? Because, as you yourself say:
> It is not necessarily logical - as moral reasoning is not always logical
And *religious* moral reasoning is particularly exempt from the requirements of logic. For religious moral reasoning, it is sufficient for someone to say, "It is this way because I believe it to be this way" and that is necessarily the end of the discussion. (This is one of the problems with religion.)
So as soon as you find yourself conducting a detailed analysis of a religious doctrine you can be quite certain that you have run off the rails (unless the doctrine itself happens to be the matter at hand).
> we can now agree that no employee's religious rights have been affected
No, we can agree on no such thing. It depends entirely on what the employee's religion is. Again, this is one of the problems with religion. If someone claims to adhere to a religion that *requires* the use of birth control, we have no choice but to either 1) take their word for it, or 2) get into the business of deciding which religious beliefs are acceptable and which are not. And I think we *can* agree that we don't want to choose option 2.
It is not at all inconceivable that an employee might have, for example, a sincerely held belief that they are stewards of the earth, that human overpopulation is a serious threat to the earth's welfare, and that therefore the use of birth control is a moral obligation, and that furthermore the *provision* of birth control is a moral obligation. An extreme fundamentalist adhering to this point of view might even go so far as to consider *abortion* to be a moral obligation. So no, it is far from clear whether it is a civil or religious right that is being violated.
Not that it matters.
> It has nothing to do with the Republicans.
Of course it does. The Republicans are the ones who want to repeal the ACA. Because they want to repeal it, they want to keep the broken parts broken in the hope that people will get fed up with the brokenness and support its repeal. And it's not just the (delegated) birth control mandate that is broken, there are other parts that are broken too. None of them have any hope of getting fixed, and that is absolutely the fault of the Republicans.
> So why would the Obama administration choose to treat the two groups - for-profit vs. non-profit - corporations differently?
ReplyDeleteBecause the *purpose* for which people come together into groups *matters*. If they come together *for a religious purpose* things are different than if they come together for some other purpose. This is why, for example, the Catholic church may refuse to hire non-catholics as priests, but Hobby Lobby may not refuse to hire non-Christians as store clerks.
This is also why, for example, churches lose many of their religious protections (like their tax-exempt status) if they start to engage in politics. (At least, they're supposed to lose those protections. That law is mostly unenforced nowadays.)
> one could say that "many atheists" aspire to make atheism non-voluntary
One could say it, but unless one could back up this assertion with actual *evidence*, one would be wrong.
> public opposition to abortion isn't evidence of a Christian conspiracy to establish a theocracy
I didn't say there was a conspiracy. The Christians who want to make Christianity non-voluntary are quite open about it. This is the reason it is so easy to provide evidence that such Christians exist in substantial numbers. The movement to turn the U.S. (and indeed the world) into a Christian theocracy even has a name: it's called Dominionism.
> I believe I gave a complete answer to this:
You gave a complete answer to how things currently *are*. You did not say whether or not you personally believe that the way things are is the way things ought to be. But I'll just assume that the answer is yes.
> The administrative rule, being voided, resets the legal environment to that of 2011.
No, it doesn't. Because AS YOU YOURSELF POINT OUT in your VERY NEXT SENTENCE:
> I agree it does set a precedent that closely-held corporations gained protection under the RFRA.
That is in fact the whole point.
> Why do you, and Justice Ginsberg, and others (say, Senator Chuck Schumer) go out of your way to emphasize for-profit? Why does the for-profit or non-profit status of a corporation matter?
I answered this above, but it bears repeating because this is the main point that you consistently miss: the *purpose* for which people come together into groups *matters*. If they come together *for a religious purpose* things are different than if they come together for some other purpose.
> the owners of HL believed that their religious ministry - of owning and running Hobby Lobby - was protected by the restrictions placed on Congress by the the 1st Amendment.
If they believed that they were clearly mistaken. Even the HL ruling doesn't protect them under the first amendment, only under the RFRA. In fact, that was the whole reason the RFRA was passed, because the Supreme Court ruled in Gonzales v. O Centro that using Peyote was *not* protected under the First Amendment. (BTW, I think the Court got Gonzales wrong too, which is one of the reasons we're in the mess we're in now.)
> Explain to me how making it impossible for them to do so isn't just simple religious discrimination?
In exactly the same way that reserving police power to the state is not simple religious discrimination: the law was passed for a legitimate secular purpose (civil order in the case of police power, promoting the health and reproductive choices of women in the case of the birth control mandate) and not for the purpose of discriminating against Christians. The discrimination against (some) Christians is an accidental side-effect. But it is *inevitable* that a non-theocratic government will pass some laws that discriminate against some religious beliefs. Legitimate secular purposes (like promoting commerce) will occasionally have to override religious beliefs. That is the *definition* of non-theocratic government.
> Are you an engineer?
ReplyDeleteI am an engineer (electrical), and a statistician, and . . . more (M.B.A.)!
>You do seem to have a tendency to get lost in the weeds. Both lawyers and engineers do this, except that engineers usually do it inadvertently whereas lawyers often do it deliberately.
Those aren't weeds! That's a field of rye, and I'm the Catcher in the Rye, trying to prevent you from going off a cliff!
>Your detailed analysis is fascinating but completely irrelevant.
Then why did you persist in asking questions such as
Besides, why would a tax to pay for birth control, or giving employees a birth control allowance . . . be any less of an undue burden on religion than the employer mandate?
What is to prevent HL now from requiring its employees to sign a pledge that they will not use birth control?
How is using an HL paycheck to procure birth control any different from using HL insurance money to procure birth control?
My analysis showed which "accomodations" - or less restrictive policies - would be acceptable and which would not be. Given that some of the accomodations were acceptable, the Obama administration could choose one of those instead.
[Regarding whether employees religious rights have been affected]
>It depends entirely on what the employee's religion is.. . ..
>It is not at all inconceivable that an employee might have, for example, a sincerely held belief that they are stewards of the earth, . . ..
Those employees are free to go work for another employer.
Individuals do not have religious rights, nor many other rights, that they can enforce against another individual, or generically, a private party. The 1st Amendment protections restrain only government action.
>> So why would the Obama administration choose to treat the two groups - for-profit vs. non-profit - corporations differently?
>Because the *purpose* for which people come together into groups *matters*.
OK, but the for-profit or non-profit status of a corporation is useless for determining the purpose. So why bring it up?
> why did you persist in asking questions such as
ReplyDeleteThose were rhetorical questions designed to make you see that going down that rabbit hole would be pointless.
> My analysis showed which "accomodations" - or less restrictive policies - would be acceptable and which would not be.
Sure, that's *your* analysis. Another person could present a different analysis with different results. Because both would be based on religious beliefs which cannot be challenged or tested there is no way to decide which one is right.
> Individuals do not have religious rights
Yes, they do.
> The 1st Amendment protections restrain only government action.
That's the wrong amendment. You want the ninth amendment. And Title VII of the Civil Rights Act of 1964.
> for-profit or non-profit status of a corporation is useless for determining the purpose
I dunno, it seems to me that forming a for-profit corporation is a very strong indication that the purpose was to make a profit. Likewise, forming a non-profit corporation is a strong indication that the purpose was something else.
But OK, maybe for-profit/not-for-profit is the wrong distinction. Maybe it should be tax-exempt/not-tax-exempt. Doesn't change the fact that there is a legitimate basis for making a distinction even if the Obama administration may have flubbed the details.
> I'm the Catcher in the Rye
Oh dear. I hated Catcher in the Rye. Seemed absolutely pointless to me.
I would like to retract two earlier comments:
ReplyDelete> Your detailed analysis is fascinating but completely irrelevant.
> Another person could present a different analysis with different results. Because both would be based on religious beliefs which cannot be challenged or tested there is no way to decide which one is right.
I went back and re-read your analysis, and it's a legal analysis, not a religious one. So I was wrong, and these two comments were out of line. I apologize.
I will go back and re-think my responses.
@Publius:
ReplyDeleteI've gone back and re-read your analysis and it has caused me to change my position a little. If HL would have bought this analysis, and if there was not some legal constraint that prevented the Obama administration from offering it, then it does seem like it would have been a reasonable accommodation and it probably should have been done. I don't know why it wasn't. Maybe the administration was just being stupid, or maybe they had a good reason that I'm just not aware of. But all else being equal, if one can make peace by simply by changing accounting practices then I'm all for it, if for not other reason in this case than that it would have stopped the Supreme Court from letting the corporate personhood genie further out of the bottle.
>The Republicans are the ones who want to repeal the ACA. Because they want to repeal it, they want to keep the broken parts broken in the hope that people will get fed up with the brokenness and support its repeal. And it's not just the (delegated) birth control mandate that is broken, there are other parts that are broken too. None of them have any hope of getting fixed, and that is absolutely the fault of the Republicans.
ReplyDeleteYou've doubled down on this partisan opinion. The facts, however, remain what they are; I provide these clarifications:
Clarification 1: As stated before, the contraceptive mandate was created by administrative rules and regulations issue by the Health Resources and Services Administration, an agency of the Department of Health & Human Services. As such, the Obama administration could choose to issue other rules and regulations - with no need for Congressional action. Indeed, many fixes could be done this way, such as fixing If You Like Your Doctor, You Can Keep Your Doctor. Period. Obama has done administrative rule changes 24 times already.
Clarification 2: Democrats are also at fault
2A: A majority of Americans want to repeal the ACA, not just Republicans.
2B: President Obama has signed into law 16 amendments passed by Congress.
2C: Often it is democrats who oppose amending the law - including President Obama.
2C1) Obama opposed repealing the medical devices tax - which had bipartisan support in Congress (both chambers), with several democrats caterwauling over how bad the tax is (here Harry Reid calls it stupid).
2C2) The 113th House has passed 18 amendments; highlights include:
Let Americans keep their health plan if they liked it
Require the government to notify people who's personal information was breached by HealthCare.gov.
Protecting Volunteer Firefighters and Emergency Responders Act
Hire More Heroes Act
The EACH Act, which would provide additional religious exemptions from the law [March 11, 2014]
None of these have been passed into law, as Harry Reid is blocking them in the Senate. Perhaps President Obama could use some of his bipartisanship skills to get things moving.
> A majority of Americans want to repeal the ACA,
ReplyDeleteThat depends on who you ask.
> Democrats are also at fault
Agreed.
I was surprised to learn that the House actually did pass some bipartisan reforms that were stalled in the Senate.
But none of this changes the fact that it is the Republicans in Congress who want to repeal the law.