Tag Archives: Hobby Lobby Case

Gorsuch’s Record Invites Some Phone Calls

The 45 Administration would very much like to have Judge Gorsuch confirmed as a member of the US Supreme Court. The judge for his part has been loathe to offer any more than Name, Rank, and Serial Number during his confirmation hearings. Not that this tactic is anything new in the process.  Famous for his Hobby Lobby decision, his dissent in TransAm Trucking v. ARB-DOl, (PDF) is attracting attention.  This is the now infamous Frozen Trucker Case in which Judge Gorsuch opined that taking such things as common sense, and legislative intent, were extraneous and if to operate a truck means to drive a truck (and its trailer with the frozen brakes) then that’s all there is to say on the subject. It’s interesting to note that Judge Gorsuch was dismissive of reinterpreting the wording of a statute, while interpreting the wording of a statute in such a way as to defend the indefensible actions of the trucking company.  In less complimentary terms, the Gorsuch rule appears to be an interpretation is acceptable if and only if that reading agrees with his interpretation.

There is still time to reach Nevada’s Senators, Heller (702-338-6605) (775-686-5729) and Cortez Masto (702-388-5020) (775-686-5750) (202-224-3542) on this subject.  Little wonder that Democratic Senators interviewed on the topic have said things like “his answers are unacceptable,” and “his answers are evasive,” and “his answers have been less than forthcoming…”

Judge Gorsuch needs to supply more than the Alito/Roberts song and dance routine to the Judiciary Committee, and the Senators need to attend to the fundamental problems with his nomination to the highest court in the land. His responses so far have been noncommittal and apolitical, but his decisions have been those of an activist ultra conservative. Actions do, indeed, speak louder than words.

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Filed under conservatism, Heller, Nevada politics, Politics, Republicans, Supreme Court

Heck’s Hobby Lobby Hopes Dashed By SCOTUS

Joe HeckNevada’s 3rd District Representative, Joe Heck (R), made this remark concerning the Hobby Lobby Decision:

“Heck said he agreed with the U.S. Supreme Court decision Monday in the Hobby Lobby case. The high court said businesses that are family owned or closely held don’t have to provide health care coverage for birth control because the companies have religious objections.

Heck said the ruling was narrowly written to accommodate religious beliefs that life begins at conception and he didn’t believe it should be broadly interpreted to apply to companies that aren’t closely held.” [LVRJ]

Here’s what makes the Congressman’s commentary unreasonable.

#1.  What is the standard for “religious objections?  Since the Hobby Lobby Decision as crafted by Justice Samuel Alito doesn’t specify a standard by which the merits of a religious objection are to be discerned, we might safely assume that a mere assertion of a religious objection is sufficient.  This is certainly at odds with the most obvious “religious objection” standard in another part of the federal government — the military.

In order to attain a “1-O” status with the U.S. military, there is a strenuous test for religious convictions.  According to the American Bar Association:

“Applicants must demonstrate that their beliefs upon which their conscientious objection is based are the primary controlling force in their lives. They must produce evidence in their written application (and during their subsequent hearing before an officer) demonstrating that neither the avoidance of military service nor expediency is the motivating factor in their claim. To this end, DoD Directive 1300.6 lists numerous factors to consider in examining the merits of a servicemember’s application, such as his or her training in the home and church, participation in religious activities, and general demeanor and pattern of conduct.”

The revised DoD Directive 1300.6 (pdf) which replaced the 1968 version in 2007, goes on for some twenty pages of specifications regarding the applicants’ qualifications for conscientious objector status.  One of the more common phrases associated with the qualification is that the beliefs must be “firm, fixed, sincere, and deeply held.”

In the case of a member of the Armed Services who wishes separation or reassignment based on religious scruples there is a process which begins with an extensive interview with a service chaplain, followed by a review by an investigating officer; there will be consultation with the Staff JAG, and then a hearing. Following the informal hearing, the investigating officer will file a report which will be forwarded to the commander.  The report and recommendations flow through the chain of command to the officer designated with the authority to make a final decision on the matter.  The separation from service or reassignment may be granted if it is concluded during the process that the individual’s beliefs are “firm, fixed, sincere, and deeply held.”

No such test appears to have been applied to the objections of Conestoga or Hobby Lobby.  Hobby Lobby simply asserted that its religious beliefs precluded funding for insurance benefits which included birth control and abortion.

If there is no test or evaluative process by which my religious objections — to anything — may be reviewed, then what is to prevent me from asserting that my religious beliefs prevent me from considering anyone for employment who is of a faith other than my own?  May I assert my ‘religious conviction’ that those who don’t keep Kosher (or Halal) are impure, unclean or otherwise unemployable. May I cut off from service any  who “partakes of any blood?” (Lev 7:22)

Who is to determine if my beliefs are “firm, fixed, sincere, and deeply held,” or if they are a simply an expedient way to refuse service to Jews or Muslims?  Or, might my objections (see Leviticus) be such that I can refuse service or employment to Basque Christians, on the grounds that many of them  make and consume blood sausage.

If this argument sounds frivolous, it is no more so than the case cited by Justice Ginsberg in her dissent — Newman vs. Piggie Park Enterprises.  The proprietors of Piggie Park (restaurant chain) objected to the Civil Rights Act of 1964 partially on the grounds that it “contravened the Will of God.” “Defendant Bessinger further contends that the Act violates his freedom of religion under the First Amendment “since his religious beliefs compel him to oppose any integration of the races whatever.” [USDC -DColumbia]  The Supreme Court ruled against Piggie Park Enterprises in March 1968.

Herein we have a closely held family business, the patriarch of which had religious objections to integration, who contended that religion trumped the application of the 1964 Civil Rights Act.  If this sounds close to the characteristics of the Hobby Lobby/Conestoga Cases it’s because they share obvious elements — just entirely different conclusions.  In short, without a test or process by which religion can be separated from convenient religiosity the adjudication of religious objections becomes highly subjective.

#2.  The decision was neither narrow, nor tightly drawn.  For all the palaver in the decision about the “narrow-ness” of the judgment, the reasoning left the door wide open to further litigation concerning the applicability of religious objections to contraception, as evidenced by some 30 cases piling up in the judicial system in the wake of the Hobby Lobby decision.  [DMN]

Immediately in line after the ‘closely held businesses,’ are the non-profit organizations, such as Wheaton College, Notre Dame University, and others for whom even filling out the form to take advantage of the Administration’s accommodation for them is ‘unconscionable.’ [WaPo]  It should be asked — if the Hobby Lobby decision was such a narrow thing, then why did the Supreme Court almost immediately grant an injuction against the contraception mandate accommodation on behalf of non-profit Wheaton College?  Representative Heck hopes, or at least asserts, that the Hobby Lobby ruling only applies to closely held firms — but in its action on behalf of Wheaton, the line immediately shifted out from under Representative Heck’s assertion and right into the realm of non-profit organizations.

#3. The decision blurs the understanding of earned benefits.  The objections from those who describe themselves as religious to procuring health insurance plans which cover contraception for their employees appear to contend that they are being forced to subsidize medication of which they do not approve.

This has several unfortunate threads entangled in it. Contraceptive prescriptions are subject to approval by the FDA, not the Chamber of Commerce.  They are used for many other reasons that simply to avoid pregnancy.  Are we allowing a corporation to determine that even though a female employee has endometriosis, menorrhagia, or polycystic ovarian syndrome the medication prescribed by her physician is not to be covered because of the employer’s objections? [DB]

The health insurance offered to company employees is part of the total compensation package.  The company may pay for part of the premiums, the employee also contributes.  Does the company’s contribution determine who will control the inclusions in the insurance benefit, or the employee?  In the Hobby Lobby Decision the Supreme Court ruled that the employer’s money speaks louder than the employee’s contribution…even though the insurance may be handled by a third party administrator.

#4. The ruling broadly asserts the efficacy of one and only one religious perspective on life.  If a person happens to believe that life begins at conception then the judgment of the Court is acceptable. However, there are those who hold that life doesn’t begin until the newborn takes its first independent breath.   There’s nothing narrow about a Supreme Court decision which sanctions the view of one particular religion, thus denigrating the views of others.

In short, the decision combined with the Wheaton injunction allows corporations and non-profit entities to require their employees to either follow the proscriptions of the institutional faith or individually procure health insurance benefits on their own.  This is close to, if not identical with, forcing employees to follow the faith of their employers — and not their own individual consciences. Such an imposition is hardly the prescription for religious liberty.

As much as Representative Heck may wish to place a happy, non-threatening spin, on the Hobby Lobby decision, he whiffed on this one while the Supreme Court moved home plate.

***

See also:  Department of Defense Instruction, 1300.6, May 31, 2007. (pdf) John P. Jurden, Conscientious  Objectors, GPSolo, Jan-Feb 2005.  Newman, Neal, Mungin v. Piggie Park Enterprises, 256 F.Supp. 941 (1966), July 28, 1966. Newman, Neal, Mungin v. Piggie Park Enterprises, 377 F.2d 433 (1967), April 24, 1967.

Sherman & Zoll, “After Hobby Lobby…”, Dallas Morning News, July 6, 2014. Jonathan Adler, Supreme Court grants Wheaton College an injunction against contraception mandate accommodation,” WaPo, July 3, 2014.  “Joe Heck calls Hobby Lobby Decision Reasonable,” Nevada Democratic Party, and Las Vegas Review Journal, July 1, 2014.

 

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Filed under civil liberties, conservatism, family issues, Health Care, Heck, Nevada politics, Politics, religion, women, Women's Issues

Hobby Lobby and the Corporate Agenda

HouseWife 2If there’s no ‘war on women’ then the conservatives, at the least, are offering us a variation on the Patriarchs Last Stand narrative.  Women comprise 50.8% of the nation’s population and 49.6% of the Nevada populace.  Going a step further, for all the chatter about the Gender Gap in electoral politics, this is not a recent phenomena.

Womens Vote Pres ElectionsThe “gap” has existed since the presidential election of 1988, or 26 years.  It’s been three decades since the Republicans achieved unquestionable success with female voters — 1984.  It’s also been three decades of Republican shifts to the right, and to the adoption of an agenda which places the desires of corporations above the needs of the general population.  Women have figured that out.

Women are more likely to see public assistance programs as helping people in need rather than ‘creating dependency,’ to support policies which are predicated on community rather than ‘individualism,’ and to believe the power of Wall Street should be curtailed than men. [CAWP pdf] In short, there are significant gender differences in political issues, and the GOP agenda is sliding (or lurching?) away from the women’s side of the electoral ledger.

At this point it ought to be acknowledged that ideological differences hold greater sway than simple gender differences would explain. [Atlantic] There is a tinge of religiosity in the conservative realm — conservatives being more likely to express an intransigent position in terms of Good and Evil, rather more reminiscent of St. Augustine before his conversion from Manicheaism to Christianity? Conservatives being more likely to express opinions which call for the punishment or deterrence of deviation from ‘social norms’ than moderates or liberals.

The interpretation of the Supreme Court’s ruling in the Hobby Lobby/Conestoga Cases brings the ideological, the gender, and the economic issues together in a complicated weaving of political strategy and strands of ideological/gender political orientation. There is one element of the decision which illustrates the ties that bind the so-called Religious Right and the Corporations:

“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.”  [BlmbrgLaw] (emphasis added)

The logic is convoluted but clear: A corporation is a person, therefore a corporation has religious protection, AND a corporation is a creation of persons and therefore has protection for its religious beliefs.  This reasoning doesn’t address issues regarding the type of organization created for the purpose of conducting commerce.

If the businesses were single proprietorships or partnerships would their ‘protection’ be more limited?  Nor did the majority decision address the issue of knowledge v. ignorance — is a birth control method which prevents pregnancy automatically considered a form of abortion?

A court which has already ruled that Corporations are People (Citizens United) has now bestowed upon that “form of organization” the benefits of religious liberty.  In doing so the Supreme Court of the United States has bundled the demands of a corporation with the provisions of the Religious Freedom Restoration Act (1993), and the First Amendment of the U.S. Constitution.

It’s time to recall that 55% women who responded to polling concerning the circumstances in which the U.S. is a more successful nation said that we are better off when we emphasize community and shared responsibility, and 37% replied that placing the emphasis on self reliance was more successful.  [CAWP pdf] With this in mind, as the Supreme Court continues to rule that corporations are people, and people are individuals, it moves the nation in a direction opposed to the thinking of most women.

Democratic candidates interested in securing women’s votes would be well advised in the upcoming midterm elections to:

1. Support the Amendment to declare that corporations are not people. [MTA]  Senator Harry Reid (D-NV) is already on board:

“It is unacceptable, that the recent Supreme Court decisions have taken power away from the American voter, instead giving it to a select few. Soon, Chairman Leahy and the Senate Judiciary Committee will hold a hearing on Senator Udall and Bennet’s constitutional amendment. The Senate will vote on this legislation after it is reported out of the Committee. I urge my colleagues to support this constitutional amendment – to rally behind our democracy. I understand what we Senate Democrats are proposing is no small thing – amending our Constitution is not something we take lightly. But the flood of special interest money into our American democracy is one of the greatest threats our system of government has ever faced. Let’s keep our elections from becoming speculative ventures for the wealthy and put a stop to the hostile takeover of our democratic system by a couple of billionaire oil barons. It is time that we revive our constituents’ faith in the electoral system, and let them know that their voices are being heard.”  [Reid]

The Amendment proposal, (pdf) sponsored by Senators Udall and Bennet, addresses the problems created by Citizens United in regard to campaign finance laws, and may need further broadening to incorporate concerns about the ramifications of declaring that all corporations have all the rights of individual persons.

2.  Support a Women’s Health Care Access bill.  Advocate for the 90% of women in the U.S. who use some form of birth control.  Advocate for those who use contraceptive medication for the treatment of endometriosis, menorrhagia, persistent ovarian cysts, and polycystic ovarian syndrome.  ** Note to male politicians — if you don’t know what these conditions are, “STFU” about women taking the pill “for fun.”

3. Remind voters that of the 138 members of the House of Representatives who voted against the Violence Against Women Act reauthorization, not a one was a Democrat. [Roll call 55]  (Happy note: all the members of the Nevada delegation voted in favor of the authorization)

4. Get opponents on record.  Does the person favor allowing corporations to have the same rights as a real person?  Does the person support a Women’s Health Care Access bill? Does the person favor equal pay for equal work?  Does the person favor a bill to mandate maternity leave?  It’s never too early to start defining one’s opponent as Pro-Family but only if the Family is narrowly defined as the  Pater Familias.

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Filed under Women's Issues, Womens' Rights