A previous comment noted that the Hobby Lobby orals promises another absurd result. Prof. Gans at Balkinization hints why:
As basically suggested by TalkLeft discussion just linked, that is telling. The general applicability rule (with legislative exemptions with more flexibility than courts might show) is in part in place because it would be hard to neutrally apply things. This will occur whenever there is any religious exemptions, but a law like RFRA that covers EVERYTHING (unless the legislature, which political realities will guard against as a rule, makes an express exception) is much worse. So, "sensitive" beliefs will be a bigger concern than others. Somewhat "out there" beliefs will be respected there while let's say opinions as to marijuana being a religious sacrament will not be. See, e.g., Oregon v. Smith itself, where the advocate noted that for Native Americans alcohol, not peyote, would be seen as particularly dangerous. The Establishment Clause problems etc. don't simply disappear because a statute is at issue, so if Scalia was consistent, he should be worried here too. Ha.
[Boerne v. Flores was decided as a federalism case, but half of the argument on the winning side was made by Marci Hamilton, who made a broader argument that would have struck it down in toto. Only Justice Stevens, in a brief concurrence, supported that -- he argued it violated the Establishment Clause. In hindsight, and if it is going to applied this broadly more so, this has more bite than some felt at the time. Those who overall think RFRA is reasonable again should be wary. Life is harder now than when "religion" meant basically Christians, the early 19th Century alone showing the sort of possible claims that might arise.]
This is already done with "abortion." Harris v. McRae is a blatant case -- of all health care, even when a woman's life is at stake, this is singled out for denial of Medicaid benefits. We are going to stretch this to small statistical chances that fertilized eggs will be prevented to implant? Really? The former rule - the challengers back three decades ago were right to flag it - an Establishment Clause problem (a free exercise claim was also raised -- as I noted last time, that's an important concern too). If we are going to stretch "abortion" this far, so much worse. And, not only that, but contraceptives broadly speaking is being targeted. This is absurd really, but there you go.
The particularly annoying thing -- well, there is so much to choose from -- is that we are repeatedly told that a right to choose does not include the government paying for it. The rule here applied to employees. Hobby Lobby owners can believe whatever they want, but do not have some right to pass the costs along to its employers and get tax benefits too. As noted in another case that Roberts et. al. apparently thinks should be ignored by the "restoration" of religious freedom by overturning decades old precedents, "it cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions." Any "indirect burden" is not enough; even this law speaks of "substantial burdens." (Reminds me of "undue burdens" on abortion rights!) .
Religious exemptions are valid things, but freedom of religion is but one of many things that should be put in the balance. Besides, the rule demanded by some here hinders religious freedom in various ways, which makes it not surprising that it was not understood to be required to protect it. Overall, corporations isn't my ultimate concern here. It is the inequity of the possible results generally applied and the way it perverts something -- religious liberty -- that is quite important. The fact some supports of the employees here ridicule religious beliefs should be a red flag, a warning sign that the claims being made are unreasonable.
Such as a company with over 600 stores and loads of employees ("closely held" or not) that is not being forced to do anything.
RFRA was enacted in 1993 to restore the Court’s free exercise case law as it existed before the Court’s decision in Employment Division v. Smith, a body of case law that mainly rejected claims for religious exemptions from neutral laws. But Chief Justice Roberts seemed to read RFRA as having created a broad right to religious exemptions. When Solicitor General Verrilli began his argument by quoting Justice Jackson’s 1944 statement that limitations on religious freedom kick in when they “collide with the liberty of others,” Chief Justice Roberts snapped back, “[t]hat’s a statement that’s inconsistent with RFRA, isn’t it?”Accord in respect to U.S. v. Lee, which should make this a pretty easy case. To remind, this is a pre-Smith case "in which the Supreme Court unanimously rejected an Amish business owner’s claim that he was entitled to a religious exemption from having to make Social Security payments on behalf of his employees." Remind me what the hell -- this case pisses me off -- that acronym means. I'll take Justice Kennedy's opinion announcement for City of Boerne v. Flores as a guide here, since Kennedy might have actually taken both sides seriously (Roberts was semi-sane in the last ACA case; Kennedy's turn):
The complaint contained various claims but to this point, the litigation has sent it on the constitutionality of the Religious Freedom Restoration Act of 1993. The Act is abbreviated RFRA and then you supply a vowel to pronounce it RFRA.It is "restoring" religious freedom to the state before Oregon v. Smith. It should not be some sort of revolutionary expansion of religious liberty (for some). As Justice Kagan noted, the law was remarkably uncontroversial at time. Did they really expect such a broad change of the law? But, the warning signs were there, if we are honest, I guess. Justice Stevens wondered during the Boerne orals if the test set forth in the law was broader than previously applied by the USSC. To make things worse, the USSC (other than a case involving the Amish and a few unemployment benefits cases) really never had to seriously address laws of general applicability. The cases assumed a broad liberty without striking down many laws (some lower courts did, which at times seems to be skipped over by critics) though even with that U.S. v. Lee expressly noted:
When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.This "unremarkable" principle now is supposedly controversial. I have quoted this language repeatedly and still don't see what makes this case different. Some people are making this out to be a corporation rights case -- you know, the USSC is in the pockets of corporations these days. And, that might have something to do with it. But, unincorporated businesses have employees too and their rights matter here. There probably are various reasons. Error is as complicated as life. As Paul Clement (sounding like his usual insufferable self -- don't care how much of a freakening genius he is) notes, "abortion" (a word here stretched beyond sensible limits and the argument made in no way is going to be limited to it anyway) is more "sensitive" than let's say vaccines. Jenny McCarthy might disagree, but whatever.
As basically suggested by TalkLeft discussion just linked, that is telling. The general applicability rule (with legislative exemptions with more flexibility than courts might show) is in part in place because it would be hard to neutrally apply things. This will occur whenever there is any religious exemptions, but a law like RFRA that covers EVERYTHING (unless the legislature, which political realities will guard against as a rule, makes an express exception) is much worse. So, "sensitive" beliefs will be a bigger concern than others. Somewhat "out there" beliefs will be respected there while let's say opinions as to marijuana being a religious sacrament will not be. See, e.g., Oregon v. Smith itself, where the advocate noted that for Native Americans alcohol, not peyote, would be seen as particularly dangerous. The Establishment Clause problems etc. don't simply disappear because a statute is at issue, so if Scalia was consistent, he should be worried here too. Ha.
[Boerne v. Flores was decided as a federalism case, but half of the argument on the winning side was made by Marci Hamilton, who made a broader argument that would have struck it down in toto. Only Justice Stevens, in a brief concurrence, supported that -- he argued it violated the Establishment Clause. In hindsight, and if it is going to applied this broadly more so, this has more bite than some felt at the time. Those who overall think RFRA is reasonable again should be wary. Life is harder now than when "religion" meant basically Christians, the early 19th Century alone showing the sort of possible claims that might arise.]
This is already done with "abortion." Harris v. McRae is a blatant case -- of all health care, even when a woman's life is at stake, this is singled out for denial of Medicaid benefits. We are going to stretch this to small statistical chances that fertilized eggs will be prevented to implant? Really? The former rule - the challengers back three decades ago were right to flag it - an Establishment Clause problem (a free exercise claim was also raised -- as I noted last time, that's an important concern too). If we are going to stretch "abortion" this far, so much worse. And, not only that, but contraceptives broadly speaking is being targeted. This is absurd really, but there you go.
The particularly annoying thing -- well, there is so much to choose from -- is that we are repeatedly told that a right to choose does not include the government paying for it. The rule here applied to employees. Hobby Lobby owners can believe whatever they want, but do not have some right to pass the costs along to its employers and get tax benefits too. As noted in another case that Roberts et. al. apparently thinks should be ignored by the "restoration" of religious freedom by overturning decades old precedents, "it cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions." Any "indirect burden" is not enough; even this law speaks of "substantial burdens." (Reminds me of "undue burdens" on abortion rights!) .
Religious exemptions are valid things, but freedom of religion is but one of many things that should be put in the balance. Besides, the rule demanded by some here hinders religious freedom in various ways, which makes it not surprising that it was not understood to be required to protect it. Overall, corporations isn't my ultimate concern here. It is the inequity of the possible results generally applied and the way it perverts something -- religious liberty -- that is quite important. The fact some supports of the employees here ridicule religious beliefs should be a red flag, a warning sign that the claims being made are unreasonable.
Such as a company with over 600 stores and loads of employees ("closely held" or not) that is not being forced to do anything.
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