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Why Hobby Lobby will probably win, and why it should.

rexvisigothis's picture

Let's call this the Peyoteros revenge, or "unintended consequences bite", shall we.

Now, I am, of course, appalled (as would any right thinking person be) that the societal benefits of co-payment free birth control and insurance coverage for medical advice about the same) should be undercut by a law specifically intended to vindicate the influence of religion in the sphere of secular behaviour.

But let us be clear--the harm flows not from the unforeseen elaboration of the stated primacy of religious beliefs, but from the decision by the state to give religion special status in the first place.

Let us begin by taking off the table the manifestly outrageous extension to a corporation of a religiously based scruple.  This particular oddity is an artifact not of the Religious Freedom Restoration Act  (RFRA) which governs the jurisprudence underlying the Hobby Lobby case but of the decision in Citizens United, extending to corporations the rights which are protected by the First Amendment to the Constitution.

For sake of clarity, let's assume, arguendo, that instead of a corporate business structure, Hobby Lobby was one of the myriad business owned by an individual, one of the Koch brothers, for example.

Now let us assume that David or Charles Koch were before the court, arguing that his personal religious promptings were outraged at the idea that any business of his might facilitate, even if only in its choice of medical insurance carrier, the use of this or that contraceptive intervention in the intended plans of the Lord for procreation.

Suspend, for a moment your outrage at this preposterous extension of personal privilege to the behaviour of out of sight and out of mind female employees thousands of miles away from the City of New York (and the David Koch Theatre where the eponymous brother may be found pursuing his hobby of fucking ballerinas--not that there's anything wrong with that).

Consider, instead, one of the cases that will inform the judges thinking tomorrow, when Hobby Lobby will be decided.

Evelyn Smith owned two duplexes in Chico, California and sought to avoid renting to unmarried couples. (Significantly, she did not live in either one, and therefor would not have been subject to hearing the sounds attendant upon the ongoing unsanctioned fornication to which she objected.)

The California Supreme Court rejected her RFRA based claim of  exemption from the relevant housing anti-discrimination statutes, mostly on the grounds that if she wished to preserve her religious scruples she could sell the property and invest the money in some way which would not give rise to the possibility of such offense to her faith. The burden of re-deploying her capital was held to be lower than the threshold harm that RFRA was intended to avoid.

The US Supreme court refused review of   the case, to the consternation of a young lawyer in the Clinton White House whose 1996 memo described the California Supreme Court’s reasoning that the anti-discrimination law wasn’t a substantial burden on Smith’s religious beliefs as “quite outrageous,” warning that, “taken seriously, this kind of reasoning could strip RFRA of any real meaning.”

Her name was Elena Kagan.

The RFRA was initially proposed in response to the general distress amongst the religious (including Ted Kennedy) occasioned by the reversal at the Supreme Court level of a lower court decision that two drug counselors who had used Peyote as part of their unequivocally religiously motivated practices and were then dismissed were eligible for unemployment compensation meaning that their firing was not based upon "good cause".

Thus was born the RFRA, and today we see the revenge of the Peyoteros-a straight line of consequences that flow from the initial evil.

That evil: The conscious decision taken by society to elevate behaviour motivated by religion to a special status not granted other sorts of motivation.

You have your freedom of religion, America.  Now choke on it. 

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quixote's picture
Submitted by quixote on

There's one small difference between taking peyote as a sacrament and denying medical autonomy to other people.

The first is something that involves nobody but yourself. The second deprives half the people of their civil rights.

Religious freedom to do the first has zero to do with the second. And it has nothing to do with suspending outrage. It's a blazingly clear matter of principle.

Submitted by hipparchia on

elena kagan didn't "lay the groundwork for" them. the extremist christianist right is going around testing every possible law and court case and precedent and public opinion they can think of for ways to turn this country into a far-right extremist christianist rapture-ready land.

Submitted by lambert on

Hmm. The post says:

The US Supreme court refused review of the case, to the consternation of a young lawyer in the Clinton White House whose 1996 memo described the California Supreme Court’s reasoning that the anti-discrimination law wasn’t a substantial burden on Smith’s religious beliefs as “quite outrageous,” warning that, “taken seriously, this kind of reasoning could strip RFRA of any real meaning.”

Her name was Elena Kagan.

We're talking about a legal case here. That looks like "laying the groundwork" to me.

Of course, I'm a straight white dude.

Submitted by hipparchia on

I dunno... I think I could be on kagan's side.

here's a copy of the actual memo:

from the memo:

The plurality opinion of three Justices reasoned that the law did not "substantially burden" her religion, as RFRA requires, because she could earn a living in some other way than by leasing apartments.

so the court decision in question seems to be "if your job and your religion don't jibe, just get another job." as a godless heathen myself, I applaud this sentiment, but I can see where that kind of precedent could backfire.

sure enough, kagan again:

The plurality's reasoning seems to me quite outrageous almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state. Taken seriously, this kind of reasoning could strip RFRA of any real meaning.

as a godless heathen living in a far-right religious-extremist populated part of the county, I sure wouldn't want to have to move somewhere else just to practice my freedom from religion. nor would I want to have to pass a religious test in order to get (or keep) a job here, which is what the original peyoteros case was more or less about.

there was a paragraph in between those 2 quotes, where kagan lists the various religious groups that are in the coalition against the court's decision and in that paragraph is this sentence:

The brief notes that the religious groups disagree among themselves as to
whether the state has a compelling interest in application of its anti-discrimination provision, which would justify imposing a substantial burden on Smith's religious practice.

which suggests that if the court had ruled that the state has a compelling interest in protecting its citizens from some kinds of discrimination then it can justifiably impose some kinds of burdens on the religious sensibilities of others of its citizens (a business-owner, in this case, not really a job-holder). and also suggests that the coalition fighting this particular ruling might never have formed in the first place.

rexvisigothis's picture
Submitted by rexvisigothis on

Yes and no...if you raise the threshold of the government's interest you have to examine each regulatory burden on a case by case basis, and the First Amendment threshold is very high.

Also, it is one thing to impose a burden of forbidding behaviour, and another to impose a burden of mandating behaviour.

Fundamentally, I side with Justice Stevens, retired, who regarded the Religous Freedom Restoration Act as an impermissible establishment of religion that is void under the First Amendment.

Submitted by Dromaius on

Kagan's argument could apply to discrimination cases as in "why the hell should ''I have to cater to those ***insert whatever ethnic, racial, religious or other group that 'I'm' not*** people. I should be able to stay in business and discriminate". So is she arguing for reversing anti-discrimination laws in general?

My own belief is that all religions need to lose their "charity" status, an action that would more than likely lead to a whole lot fewer of them, which would in turn lead to fewer of these kinds of problems.

Too bad we can't just say that no employer has to cover birth control and the state would do it. Now that is the kind of slippery slope I like. Attaching a 20%+ insurance company markup onto birth control or anything else is just stupid. And that's why I hope that Hobby Lobby wins...

rexvisigothis's picture
Submitted by rexvisigothis on

Yes, I think it would, which makes us glad that Jan Brewer didn't send the issue up by signing that odious Arizonea bill "you don't have to serve teh gay Act".

Bottom line, it is, as you say, impermissible to permit behavior because it is "religiously" motivated, where it would otherwise be proscribed. That is the establishment of religion.