White House will consider whether president can act on his own to mitigate effect of Supreme Court contraception ruling
The Supreme Court has ruled 5-4 in favor of Hobby Lobby (and two other companies), ordering that HHS cannot force their owners to violate their religious beliefs and pay for abortifacients. The opinion is here.
The key argument made by the administration in defense of its policy is that the Religious Freedom Restoration Act doesn’t apply to companies (even closely held companies), because corporations aren’t real people and can’t exercise religion. This is the same argument that they use to attack the free-speech rights of companies.
The Supreme Court majority, in the Citizens United case, rebutted this, pointing out that corporations are simply groups of people who choose to organize their efforts using a certain legal mechanism. It’s those people whose rights were implicated in Citizens United, and in Hobby Lobby. The Supreme Court reiterates their argument here:
As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows:
“General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F. 3d, at 385 (emphasis added).
All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.
The left railed against Citizens United for “making corporations into people,” and will doubtless do so here as well. But a moment’s consideration shows that exactly the opposite is true. Treating corporations as people is a “legal fiction” that serves to protect the rights of actual human beings. In contrast, the left believes that corporations really are actual entities (they would probably avoid using the word “people”), but ones without any rights:
HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies. . .
ASIDE: The dissent, apparently recognizing that terminating all civil rights for corporations might be bad, claim to limit the application of their principle to for-profit companies. The justify their entirely new carve-out by some sophistry (for-profit corporations, they claim, have no purpose whatsoever other than to turn a profit), but it’s hard to believe they are really in earnest. Their new rule against for-profit corporations wouldn’t last long once a for-profit corporation they like (say, the New York Times) was in the dock.
But, to make it crystal clear where they stand, the dissent also explains that, even if the rights of real human beings were implicated, the government would be free to trample those rights:
Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.
The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.
This argument, which the dissent adopts from HHS, claims that accommodating Hobby Lobby’s owners’ religion would impinge on the interests of third parties. That’s true, in a sense. Yes, it would impinge on third-party interests that they HHS’s own policy created! If this were to stand, it would provide a blueprint for neutering any religious freedom claim: simply create a third-party interest against the religious practice, and then observe that accommodating religious would make it go away again.
This did not escape the notice of the majority, who observed:
In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals.
To summarize, the left’s position now is that (1) corporations are people exactly enough to stand clear of their owner’s right, but not enough to have rights of their own, and (2) the government can burden religion, so long as in so doing it creates some third-party who benefits from the burden.
UPDATE: An interesting analysis from Mark Rienzi. It includes this observation:
It was well-established that corporations could exercise religion, and that profit-making ventures could also exercise religion. And as the Court pointed out today, the various opinions in Gallagher v. Crown Kosher Markets made it hard to conclude that putting the two together eliminated the ability to engage in religious exercise in the sense of the First Amendment and RFRA. But Hobby Lobby now establishes the point beyond any doubt.
Put that way, it sounds pretty obvious. Unless your school of jurisprudence is entirely ends-directed.
UPDATE: A lot of people on the left are attacking Hobby Lobby (the company), rather than Hobby Lobby (the legal opinion). I think those people are missing the point; what’s important here is the law as it pertains to religious freedom, not Hobby Lobby’s particular choices. But, for what it’s worth, this article addresses every attack against Hobby Lobby I’ve seen, as well as reiterate some of the key legal points.
Yesterday’s passing of two key Watergate figures — Sen. Howard Baker (R-TN), who famously asked “what did the president know and when did he know it”, and IRS commissioner Johnnie Walters, who refused to target Richard Nixon’s political enemies — highlights a key difference between our two political parties: The Republican party is filled with honorable people who stand up for the rule of law, even against their own party’s interests. The Democratic party has few such people, if any at all.
On October 19, 1973, Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus (Republican political appointees each) both resigned in protest when Nixon ordered them to fire Archibald Cox, the special prosecutor who headed up the Watergate investigation. Richardson had appointed Cox to the position earlier that year. Alas, today’s Attorney General is no Elliot Richardson. He has no special prosecutor to fire — not for the IRS, not for Gunwalker, not for the HHS, etc. — because he refused to appoint one in the first place. Far from countenancing any kind of investigation into the Obama administration’s wrongdoing, Eric Holder sees his role as “scandal goalie”, protecting the Obama administration from any investigation.
Nixon ultimately was forced from office because he was abandoned by his own party. Republicans had more than enough votes to acquit Nixon in a Senate trial on impeachment articles, but Nixon resigned when informed that he could rely on no more than 15 votes.
Contrast that with today, with Democrats placing their party over everything. Far from holding the Obama administration to account — as Republicans did — they are on the team, doing what they can to obstruct the investigation. As the most pungent example, here’s Elijah Cummings’s (D-MD) abject apology to IRS Commission John Koskinen (no Johnnie Walters is he!) for the appalling nerve of GOP representatives asking tough questions about the IRS’s highly suspicious loss of years of subpoenaed emails:
Elijah Cummings’s role in the IRS investigation has been to blunt any impact it might have by portraying it as a partisan effort. He’s right, in a way. The House investigation of the IRS (etc.) has been partisan. Democrats won’t take part in it, and they have blocked any non-partisan investigation.
In Watergate, Republicans showed that they have principles higher than party loyalty. During the Obama administration, Democrats have shown they do not.
I guess I shouldn’t be surprised that the New York Times bestseller list is fake, and yet I still am. Is anything they do legit?
I had thought that the Red Cross was a worthy charity, but this makes me doubt it:
Just how badly does the American Red Cross want to keep secret how it raised and spent over $300 million after Hurricane Sandy?
The charity has hired a fancy law firm to fight a public request we filed with New York state, arguing that information about its Sandy activities is a “trade secret.” . . .
If those details were disclosed, “the American Red Cross would suffer competitive harm because its competitors would be able to mimic the American Red Cross’s business model for an increased competitive advantage,” Levin wrote.
The letter doesn’t specify who the Red Cross’ “competitors” are.
Competitive disadvantage? If the Red Cross’s business is helping people, how could it be bad for others to follow their model? It seems that the Red Cross has fallen victim to the iron law of bureaucracy.
The Telegraph reports:
Argentina’s President Cristina Kirchner has created a new post: secretary for strategic co-ordination of national thought.
The government hastened to explain that the post isn’t what it sounds like. Then why make it sound like that?
The New York Times doesn’t want you to have guns. They definitely don’t want felons to have guns. Except, as Ann Althouse notes, when the case can be used to attack a potential GOP presidential candidate. Then the NYT finds it outrageous that a felon cannot carry a gun. Get this:
Aware of the awkwardness, the two men [that is, the perpetrator and the victim] arranged to meet in the evening quiet of the local community center. Their only previous encounter, a decade ago, had ended with a thrown punch and a broken nose. . .
The punch they shared had come out of who knows where, maybe Iraq, to still a long-ago liquid night. But its impact was still being felt by the former Marine [Eric Pizer], who threw the right jab just days after returning from a second deployment; the victim, who has not breathed the same since; and the governor, who chooses never to exercise an executive power of ancient provenance.
(Emphasis mine.) “The punch they shared”! Ordinarily a punch is thrown by one person and impacts another, but when we want to rehabilitate the perpetrator for political purposes, it was “shared” by both of them. “Sharing” sounds so much nicer than “maiming”. Naturally, the real culprit isn’t the culprit; no it’s either the booze or the Iraq War, and probably the latter.
Yes, I said “maiming”:
That pop pushed Mr. Frazier’s nose nearly two inches to the right. . . “Broken nose” is almost too flip a term for the damage done. Mr. Frazier says that his nose had to be broken and reset twice, but it remains a bit crooked, aches in the cold and feels constantly congested. “Migraines pretty much daily,” he said.
Pizer, who has a history of getting drunk and maiming people, now wants to be a police officer, but his felony conviction stands in the way. The New York Times thinks that Wisconsin Governor Scott Walker should pardon him so that Pizer can realize his ambition of being a cop. Keep in mind, this is someone with a record of misreading a situation and responding with unjustified violence.
The NYT is able to offer the following evidence that Pizer has changed his ways: “”. No, that’s too glib. Let me quote, in their entirety, both of the article’s paragraphs on his post-conviction life:
The former Marine worked as a construction laborer before getting hired to lug Steinways and Schimmels up stairs and around corners. He completed probation and paid off the $7,165.59 in restitution. He met a woman with a child, married, fathered a son, and received joint custody in the divorce.
. . .
Mr. Pizer pushed on. Taking classes part time, he earned an associate degree in criminal justice. He also found allies in two Madison lawyers, David D. Relles and John R. Zwieg, who agreed to help him seek a pardon.
To summarize: he got a job, he got married, he got divorced, he got a community-college degree, and he hired lawyers. In an article about how Pizer deserves a pardon (and Gov. Walker is an awful human being for not giving him one), the NYT is strangely unable to produce even a single fact that would support such a pardon. Well, he does say he’s sorry, so there’s that.
What’s really striking about this piece is the comments from the NYT’s reader-idiots. They are eager to get in line with what they are told to believe. I’ll just quote one, which is typical of many:
I would be absolutely comfortable to learn that Eric Pizer was patrolling my community as a deputy sheriff. It would be even better if here were allowed to serve his own community that way.
Based on what? This is a guy who maimed someone for life because he “saw movement and reacted with his right hand.” Imagine if this guy had been carrying a gun, which is what you say you want!
In all seriousness, perhaps Pizer has turned his life around and is a really good guy now. I hope so. But if so, wouldn’t they be able to come up with some examples more compelling than his ability to hold down a job and get an associate degree part-time? The touching part of the story is how Frazier was willing to meet with Pizer and forgive him. That speaks well of Frazier, but it tells us nothing about Pizer.
POSTSCRIPT: By the way, the New York Times is on the record as opposing the restoration of gun rights to felons, making this whole piece particularly bizarre.
(Via Power Line.)
UPDATE: By the way, it’s telling that after years of a massive, publicly-financed fishing expedition, this is all they can come up with.