Lion predicts that Hobby Lobby will lose
Regarding the cases argued in the Supreme Court yesterday, which includes Sebelius v. Hobby Lobby Stores, Inc., I remind you once again that the Supreme Court takes a very broad view of the powers of Congress to regulate businesses. I find it unlikely that Hobby Lobby will win.
Maybe the two most heavily Catholic judges, Scalia and Thomas, will side with Hobby Lobby, not because of consistent jurisprudence but because these normally hyper-rational justices become irrational when Christianity is at issue. The rest of the court will probably fall in line based on the slippery slope argument (where would these types of exemptions end?), because the 1993 Religious Freedom Restoration Act was intended to protect individuals from discrimination and not to allow corporations from avoiding general business regulations, because the law isn’t forcing anyone to use contraceptives, etc. The Court has previously held that the RFPA doesn’t allow a religious person to get out of paying taxes, and paying for health insurance plans is like paying a tax.
Taxes go to pay for public schools, where there are art classes where the children are instructed to draw pictures of animals, which violates the Islamic religion. Does that mean Muslims don’t have to pay taxes? I don’t think so.
Lion of the Blogosphere 
If you read the argument transcript Hobby Lobby had the much better oral argument, which does not mean much as these are all pretty much decided on the briefs.
I believe the the government’s position (and possibly main argument) was that for-profit corporations did not have standing to even contest the issue (I have not read any of the briefs).
I think this case can be distinguished from the earlier decision you talk about because here there is an alternative: if the company does not want to pay for the coverage, the government can instead. In the income tax case there is no similar alternative.
ASF
March 26, 2014 at 10:16 AM
OT, but this line from this week’s recent NYT weddings profile perfectly encapsulates the SWPL doctrine that working for self-actualization is morally superior and essentially, makes one more deserving of love, than working in order to support yourself.
Throughout her career Ms. Rosenbaum had met (and been bored by) gaggles of sales representatives and number crunchers in the wine business, so she was thrilled when Mr. Klassen said he was involved in the winemaking itself at the Conn Creek Winery in Napa Valley.
http://www.nytimes.com/2014/03/23/fashion/weddings/finding-each-other-midlife.html?_r=0
Fiddlesticks
March 26, 2014 at 11:02 AM
“Ms.” Rosenbaum, NYT? Is it now their policy to use “Ms.” for women all the time, even when it’s clear that it’s the maiden name? “Ms.” just sounds a little off here.
Kyo
March 27, 2014 at 1:04 PM
I propose a blogwide pact to use Ms only for unmarried women over 25. Let’s see if we can make it unpalateable.
Glengarry
March 31, 2014 at 6:05 AM
Your comment about Scalia and Thomas is absurd. Obamacare is massively unconstitutional on many levels. Indeed, last time around Justice Roberts had to invent an absurd excuse (after, apparently, writing the rejection of Obamacare which then became the dissent!) to keep it alive, leading many to feel (myself included) that he’d been compromised. NSA spying, anyone?
In the current case, the four Liberal judges are a lock to vote against. None give a fig about the Constitution, they care only about brute governmental force promoting their agenda. One might think it will come down to Kennedy, as it often does, but it remains to be seen how much of a vice they’ve got Roberts in and how much they want to squeeze him.
In any case, if you want to read more about it you can start here. There are lots of links within the link.
http://www.powerlineblog.com/archives/2014/03/obamacare-in-court-again.php
The Supremes have long run roughshod over the quaint, out-dated white man’s Constitution, and the Obama Administration treats it like a joke. Welcome to the Oligarchy.
peterike
March 26, 2014 at 11:14 AM
The Supreme Court hasn’t questioned the constitutional authority of Congress to regulate businesses since the 1930s.
Lion of the Blogosphere
March 26, 2014 at 1:26 PM
Citizens United?
Curle
March 26, 2014 at 10:14 PM
It is strange how random yokels on the right assume the Constitution always supports their political preferences, and anyone who disagrees is always acting in bad faith and secretly knows they are right.
lodola
March 26, 2014 at 8:09 PM
As the court has gotten more partisan and ideological, it’s gotten easier to predict. The Justices will pay attention to “the law” when the stakes are low, but when they are high, it’s 4 for, 4 against, and Kennedy. I knew that Obamacare would win in the court even though the oral arguments were a disaster. The judges had made up their minds, and as a bonus, Roberts revealed he is susceptible to intimidation. The Op-eds are already packed with warnings to Roberts not to “damage the integrity” of the courts, so the media has learned who they can apply pressure to.
So I agree with Lion that Hobby Lobby will lose, although there might be some small side issue they win on.
Mike Street Station
March 27, 2014 at 10:09 AM
I also predict Hobby Lobby will lose. Simply because every time that social conservatives go before the court, they lose, even when they should win for logical reasons.
Losses for the right will come harder and faster now.
The only way for conservative people to win is to openly and politely refuse to follow unjust laws. Just on the basis of principle refuse to follow the law, and invite the administration to make you a political martyr. If they fine you, don’t pay it. If they want to jail you, great! If they try to shut down your business keep it open anyway until the jackboots come with force, cameras rolling.
Instead of spending millions on political fights you will invariably lose anyway because of demographics and the lack of respect liberal judges (who will soon be a majority) have for rights that conservatives cherish, funds should be raised to support objectors and their families so that they can endure the force of the law.
There are two possible outcomes:
(1) Conservatives refuse to honor the law, and the government refuses to enforce it, because they don’t want to make a scene. Conservatives have nullified the law.
(2) Good people receive the full force of the law, and the left is shown as tyrannical rather than the aid to the underdog. In this age of social media and the Internet, this is great for conservatives.
This is how the left wons many battles, by ignoring the law. Segregation laws in the south, marijuana laws, immigration laws, sodomy laws and more. Invite prosecution, and flout the law in great numbers.
Dan
March 26, 2014 at 11:23 AM
Something like that happened during the shutdown. Some private businesses operating in shuttered public parks refused to close. I recall police being involved. In any case, nobody cared save for conservative media.
Dain
March 26, 2014 at 2:46 PM
Regarding the shutdown, veterans rolled in on their wheelchairs in violation of the law and won the day. But it was impossible for them to get any press except from the right wing nutjobs at ABC News, PBS and the Huffington Post.
http://abcnews.go.com/Politics/world-war-ii-veterans-prove-unstoppable-entering-memorial/story?id=20446144
http://www.pbs.org/newshour/rundown/vets-frustrated-with-the-shutdown-rally-at-wwii-memorial/
http://www.huffingtonpost.com/2013/10/01/wwii-veterans-memorial_n_4023667.html
Dan
March 26, 2014 at 5:06 PM
the problem is that most conservatives have pension savings, home equity, and other savings that the government can go after. Civil disobedience is the domain of the left since they have people who the government cannot get a “handle on.”
superdestroyer
March 26, 2014 at 6:42 PM
Civil disobedience has been the domain of the left because the right was ‘the man’. Now that ‘the man’ is the left, it is time of the right to adopt the most successful tactics of the left.
As for savings, this is why it is so important to have a fund to support the families of those that the left attacks politically. Also, don’t choose as your objectors the persons in whose name all the assets are registered. Not only is civil disobedience possible, in the long run it will be the only way.
Dan
March 26, 2014 at 8:21 PM
Republicans are about to cream Democrats in mid-term elections.
Curle
March 27, 2014 at 12:43 AM
I never understood why the same people argue so many cases before the court. They can’t possibly care that much about the outcome of a particular case. If my case was before the court, I would want people passionate about that issue to represent it.
Dan
March 26, 2014 at 11:28 AM
Passion in front of judges is for proles and Guido Lawyers like Jamie Casino. http://www.youtube.com/watch?v=jr2gdPY-88w. Judges prefer attorneys who are really smart. Not as high a percent of the bar as you might think.
Curle
March 27, 2014 at 12:52 AM
Just more political kabuki. This whole issue about businesses having to cover stuff they disagree with due to religious scruples isn’t going to matter in a few years, because if Mrs. Clinton is elected in 2016, it’s game over: single payer will be imposed. Shoot, there might not even be a private system left, or if there is it will be so prohibitively expensive that only the truly wealthy will be able to afford it.
Sgt. Joe Friday
March 26, 2014 at 12:07 PM
my 2cents on the issue is I hope hobby lobby wins. looks like a long shot though since it’s not a religious organization
grey enlightenment
March 26, 2014 at 12:41 PM
RFPA requires the government to use the least intrusive method of achieving a policy goal. Medicaid already covers contraception, so they could just expand eligibility and get the same result. Or just buy up contraception, and hand it out. Hobby Lobby should win. But I never try to predict the Supreme Court.
dsgntd_plyr
March 26, 2014 at 1:11 PM
“the two most heavily Catholic judges, Scalia and Thomas….”
Lion could be right about Scalia and Thomas, but Alito and Roberts are still more Catholic than the pope.
Mark Caplan
March 26, 2014 at 3:03 PM
“because the law isn’t forcing anyone to use contraceptives”
Just to clarify, Hobby Lobby is not objecting to providing contraception coverage; they’re opposed specifically to covering post-fertilization methods of terminating or preventing pregnancy (which technically aren’t contraception). I think there’s at least some chance they’ll win, as they are substantially in compliance with the law, and definitely in compliance with its intent. The owners of Hobby Lobby are fundamentalist Christians, and FCs (and protestant Christians in general) don’t have any problem with contraception; that’s a Catholic thing. Their issue is with methods they consider to be abortion.
J1
March 26, 2014 at 7:15 PM
And no one is forcing anyone to have an abortion.
Lion of the Blogosphere
March 26, 2014 at 9:06 PM
How does that pertain to this case? The issue is being forced to pay for it, not being forced to have one.
J1
March 26, 2014 at 9:34 PM
The talk on political websites is that if Hobby Lobby wins, it will keep the contraception issue before the public to the great benefit of Democrats in the 2014 election.
Moderate married women almost all use contraception, mostly paid for by their insurance, and increasingly it seems to them that the GOP is full of a bunch of ogres who think its use is immoral.
lodola
March 26, 2014 at 8:15 PM
That’s very true. A “loss” in this case will be another huge propaganda win for the Left. Seriously, for way too many women in America “politics” equals gay marriage and vaginas.
peterike
March 26, 2014 at 11:05 PM
Right, but they are not disproportionately dumb, frivolous, prone to dramatics and overly-emotional as people thought in the olden days. Because to think so would be to suggest you thought the human sexes developed for different, if complimentary, functions. And to think that might lead you to think that gay couplings and heterosexual couplings might have different social consequences and significance. And to think that might lead you to believe gay marriages weren’t, in fact, the equivalent of heterosexual marriages. And, if you believed that you might not think gay marriages the wonderful social advance Hollywood thinks it to be. And Hollywood hates non-believers so to overcome your resistance they will schedule even more gay themed programming and movies. And this process will continue on and on and on until you give in.
Curle
March 27, 2014 at 10:11 AM
You’ve got that right. But don’t rule out the most important consideration for vaginas. And that is wanting others to pay for them. Studies show women vote for socialism as insurance against finding themselves divorced or single mothers. The threat of poverty before socialism is why there used to be such low divorce and illegitimacy rates. As soon as women got the vote they voted to expand welfare programs. That along with birth control and abortion is why the illegitimacy and divorce rates spiked and the fertility rate plummeted.
destructure
March 27, 2014 at 10:52 PM
So Hobby Lobby has to provide contraceptives but non-profits and religious organizations do not? Why the exemption for non-profits? Do people assume non-profit means no one makes any money?
map
March 26, 2014 at 8:43 PM
Because that’s what the statute says. Does Congress sometimes make stupid statues? Duh!
Lion of the Blogosphere
March 26, 2014 at 9:10 PM
It’s not a statute, which is part of the government’s problem.
RSF
March 27, 2014 at 9:40 PM
Nonprofit organizations are not exempt from providing contraception coverage. Only religious ones are.
Peter
ironrailsironweights
March 26, 2014 at 10:14 PM
My view is that people should pay for their own contraception.
Joe Walker
March 26, 2014 at 11:38 PM
Quote: “Taxes go to pay for public schools”
And many of those public schools are hellholes.
Joe Walker
March 26, 2014 at 11:40 PM
Does anyone else find it absurd that the government could require a business to include abortion in the health insurance coverage even though a business isn’t legally required to provide health insurance coverage at all? This goes well beyond making abortion legal. This is about leftwing radicals using the heavy hand of government to impose their will on others.
destructure
March 27, 2014 at 5:44 AM
Seems like common sense to prevent poor people from reproducing.
Lion of the Blogosphere
March 27, 2014 at 7:21 AM
I agree that poor people should not be encouraged to procreate, but most of them lack the willpower and the future time orientation to regularly use contraception.
Sgt. Joe Friday
March 27, 2014 at 11:44 AM
Which is why they need “morning after” abortifacients.
Lion of the Blogosphere
March 27, 2014 at 1:08 PM
If it is common sense then let the government pay for it.
diversityischaos
March 27, 2014 at 12:27 PM
OT: New York City has most segregated schools in nation. Ahhh yes, the hot cultural center of our Progressive Overlords! Thou shalt do as they say, not as they do.
http://nypost.com/2014/03/26/nyc-has-countrys-most-segregated-public-schools-report/
peterike
March 27, 2014 at 9:25 AM
Stop pretending that the arguments even matter. FWIW, Kennedy seemed skeptical of The government brief.
The fact is that there are 4 liberal hacks on the Supreme Court, and one Justice who is either bought or scared. If he can decide the previous case on an issue that wasn’t briefed, he can decide this one on hack work too.
Rotten
March 27, 2014 at 1:59 PM
The bases of this case is the Religious Freedom Restoration Act of 1993.
The first amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Supreme court historically interpreted this to mean it banned laws that burdened a person’s exercise of religion. In the 1980s the Supreme court allowed some laws to stand that prohibited religiously activities as long a the ban was “generally applicable” to all citizens. In Employment Division v. Smith(1990) the Supreme court rules that a state could deny unemployment benefits to someone fired for the use of peyote during a Native American religious ritual.
This caused Congress to pass the Religious Freedom Restoration Act of 1993. It says “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” It does provide for some exceptions but it requires strict scrutiny of those exceptions.
Hobby Lobby is basically claiming that the government forcing it to buy health insurances that covers birth control violates its religious believes and so they should be exempt from it under the Religious Freedom Restoration Act.
I think it is highly doubtful that a corporation, even a closely held corporation like Hobby Lobby, was what congress meant by “person” in the Religious Freedom Restoration Act. There may however be 5 votes on the Supreme court to say Hobby Lobby is a ‘person’ for the purpose of this act. Chief Justice Roberts seemed to be struggling with this in some of his questioning. At one point he suggested that maybe only closely held S-type corporations could been considered ‘persons’ that have religious believes and public or more widely held corporations cannot have religious believes. Talk about legislating from the bench.
Corporations are legal entities created by law and relatively recently. The point of a corporation is to provide legal protection of the owners’ other assets in the event the corporation fails. This allows people to invest money in a corporation and limits their maximum possible loss to all the money they invested. This is a big incentive for people to invest. This concept of limited liability was first introduced in England in 1855 and has evolved since. During depressions when many corporations failed, people questioned the wisdom of allowing the business men who owned the corporations to escape liability for the failure of the company they had managed into failure. Legislatures and courts however have upheld the concept that the liabilities of the company are separate and distinct from those of its owners.
If the liabilities are separate and distinct, how on earth can you claim that Congress intended for corporations to have religious believes?
It also is a stretch to insist that buying health insurance that provides coverage for birth control violates anyones free exercise of religion. The government is not forcing the owners of Hobby Lobby to use birth control. The government is not forcing any of the employees who get insurance from Hobby Lobby to use birth control. The truth is that health insurance that does not cover birth control is probably the same price or more expensive than health insurances that does cover birth control. The cost of paying for a live birth is higher than the cost of birth control. If Hobby Lobby’s health insurance does not pay for birth control, then some employees will use their wages from Hobby Lobby to buy birth control, in which case Hobby Lobby is enabling their employees to buy birth control by paying them their wages. Should Hobby Lobby have the right to withhold wages from employees they suspect are buying birth control?
Justice Kennedy, who might be the swing vote on this, seemed to suggest that if the Supreme court lets this stand, then Congress could require health insurance to cover abortions. Of course Congress did not require health insurance to cover abortion and it is highly unlikely that it ever will. Congress also could pass laws requiring corporations to give their employees a smoked ham for Christmas (offending all Jewish and Islamic employers), but that is not going to happen either.
Overturning this rule, even it limited to closely held S-Corporations, will open a flood gate of litigation by corporations demanding exemptions from laws and government rules based on religious believes.
mikeca
March 27, 2014 at 5:55 PM
Thank you for your excellent analysis.
Lion of the Blogosphere
March 27, 2014 at 7:10 PM
“Everyone including Verrilli admits it covers corporations, and Verrilli had to try to argue that the Court should divine what Congress really wanted and read an exclusion of for-profit corporations into it.”
From Althouse’s write up.
RSF
March 27, 2014 at 9:53 PM
There are probably 5 votes on Supreme court to say the corporation Hobby Lobby is a person as used in the Religious Freedom Restoration Act. This, however, is a dangerous bit of legal fiction and is a prime example of the courts legislating from the bench.
The real question should be, does the government requiring employers that offer health insurance to include coverage for birth control violate the religious freedom of the owners of Hobby Lobby. If the owners of Hobby Lobby have to buy this insurance for their employees that covers birth control, does this interfere with their free exercise religion?
The owners of Hobby Lobby clearly believe it is sinful to use certain kinds of birth control, but the government is not forcing them or their employees to ever use birth control. It is requiring their insurance to cover birth control, which probably does not increase the cost of the health insurance.
What about the religious freedom of the employees? Do the owners of Hobby Lobby not trust their employees?
There are many fringe religious groups opposed to some or all health care. Many are opposed to vaccination on religious grounds. Christian Science, as an example, is opposed to almost all modern health care. Are business owners allowed to exempt themselves from health care coverage of almost anything base on cult like religious believes?
Aren’t the owners of Hobby Lobby attempting to impose their cult religious believes on their employees? Is this what congress meant to enable with the Religious Freedom Restoration Act?
(Note: I saying extreme opposition to birth control is a cult like believe, although some large mainstream religions are opposed to use of birth control. However, for example, a large percentage of Catholic women use birth control anyway in spite of the church’s opposition. Only a small, clut like, group of Catholics take this seriously. Don’t forget that the Catholic church is also opposed to premarital sex, but the overwhelming majority of never married Catholic women have had sex by their early twenties anyway.)
mikeca
March 28, 2014 at 2:38 PM
mikeca
I admire your generally well-reasoned and elegant argument. Well done. However, there are a couple of points of disagreement. And I’m sure you’ll disagree with me on them. 🙂
“If Hobby Lobby’s health insurance does not pay for birth control, then some employees will use their wages from Hobby Lobby to buy birth control, in which case Hobby Lobby is enabling their employees to buy birth control by paying them their wages. Should Hobby Lobby have the right to withhold wages from employees they suspect are buying birth control?”
First, If Hobby Lobby is paying them the same then they’re no more denying people who want birth control wages than those who don’t want it. What people do with their wages after they receive them is their own business. And second, there are lots of things a corporation’s buying power could get cheaper for it’s employees. Should corporations be forced to provide all these things or just this one? If so then that seems rather arbitrary.
“Justice Kennedy, who might be the swing vote on this, seemed to suggest that if the Supreme court lets this stand, then Congress could require health insurance to cover abortions. Of course Congress did not require health insurance to cover abortion and it is highly unlikely that it ever will. Congress also could pass laws requiring corporations to give their employees a smoked ham for Christmas (offending all Jewish and Islamic employers), but that is not going to happen either.”
It’s unreasonable to suggest Congress would never require corporations to provide abortion coverage when there is a large and well-funded lobby pushing to expand abortion. The very topic we’re discussing is being pushed by that lobby for the purpose of doing just that. I agree that congress should not pass laws requiring corporations to give their employees a smoked ham. But neither should congress pass laws requiring coverage.
“Overturning this rule, even it limited to closely held S-Corporations, will open a flood gate of litigation by corporations demanding exemptions from laws and government rules based on religious believes.”
Good. I’d love a flood of lawsuits to roll back government intrusion.
destructure
March 27, 2014 at 10:40 PM
“And second, there are lots of things a corporation’s buying power could get cheaper for it’s employees. Should corporations be forced to provide all these things or just this one? If so then that seems rather arbitrary.”
The American health care system is too dependent of employer based health care. Companies is most other industrialized countries don’t have to purchase health care for their employees. This puts US companies at a competitive disadvantage. The ACA makes no attempt to fix that, and it is doubtful Congress will attempt to fix it for a long time.
Basing the American health care system on employer provided insurance does leave it vulnerable to cult religious believes of employers. I suppose a Christan Science employer could refuse to provide health insurance for anything other than visits to Christan Science Practitioners (I believe Medicare will pay for visits to Christan Science Practitioners.)
I don’t think this case is really very important in the global perspective. If the Supreme Court finds for Hobby Lobby, I don’t think very many other employers will rush to claim religious exemptions to the birth control mandate. I know my employer health insurance has long covered birth control.
“It’s unreasonable to suggest Congress would never require corporations to provide abortion coverage when there is a large and well-funded lobby pushing to expand abortion. The very topic we’re discussing is being pushed by that lobby for the purpose of doing just that.”
There is also a very large, very well funded lobbying effort to make abortion illegal. Congress has not allowed any federal funding for abortions in years and I don’t see where there is any chance Congress would pass a requirement that employer insurance cover it. I believe my employer insurance does cover abortion, but I have never asked.
mikeca
March 29, 2014 at 5:12 PM
mikeca
I completely agree that health insurance is too tied up with employers. I really wish there was a way to fix that. I don’t think it will be fixed because it’s a way to socialize the costs. Since it’s illegal to ask prospective employees about their health or discriminate on that basis it’s socialist. On the other hand, it’s not unusual for people who are very ill to lose their jobs when they’re unable to work. They lose their jobs then they end up losing their health insurance because they can’t make the payments. It’s messed up. I think someone should be indefinitely covered for a serious illness so long as they were covered when they contracted that illness.
“There is also a very large, very well funded lobbying effort to make abortion illegal. Congress has not allowed any federal funding for abortions in years and I don’t see where there is any chance Congress would pass a requirement that employer insurance cover it. “
Yet abortion has been legal for over 40 years. That’s because 2/3 of women want abortion as a back-up plan in case they get pregnant. Of course, there are small groups who wish to ban abortion altogether. But it’s unrealistic to think that will ever happen. All the hoopla has been over minor, common sense regulation regarding partial birth abortion, parental notification and making clinics meet the same standards as any other outpatient clinic. So let’s not confuse the issue with a moot debate over who wants to make it legal or illegal.
I’ll be blunt. People often say, “That will never happen” when they secretly hope that it will. They merely say it will never happen to disarm opponents. Liberals are particularly bad about this and have repeatedly done it since the 60’s. They use it as a tactic.
destructure
March 29, 2014 at 10:49 PM
“I remind you once again that the Supreme Court takes a very broad view of the powers of Congress to regulate businesses”
From Althouses write up of this case, Congress has done no such thing. This is an implementation decision of Federal department, not law makers. If anythign, the will of Congress in the RFRA is just the opposite.
ClusterofGrapes
March 27, 2014 at 6:25 PM
“If you really want to be straightforward and you actually care about what the legislature has done, the Religious Freedom Restoration Act towers over the HHS regs. Congress took the political credit for RFRA. Our elected representatives preened over their enthusiasm for religious exemptions back then. Congress avoided political responsibility — as it barely passed the ACA — for the birth control provisions and Congress avoiding for cutting the ACA free from the RFRA regime of judicially recognized exemptions.”
More Althouse that is relevant to your analysis.
RSF
March 27, 2014 at 9:55 PM