Third Party & Independents Archives

Two Thorny Cases for SCOTUS

The Supreme Court has left two rather thorny cases for this week; the Hobby Lobby case and home health care workers in Illinois who are fighting against being forced to pay union fees. While the Supreme Court’s decision on the former case will receive more attention as it defines perhaps a new balance between freedom of worship and women’s rights, both cases are more related than might appear at first blush. Both have to do with the distinction between negative and positive rights. Our right not to be subjected to the action of someone or some other group, leaving us free to work our destiny out - a negative right - is the foundation of much of natural right theory. Our right to be subjected to an action by another person or group - a positive right - is the foundation of most entitlements. If you’re progressive, or better yet out and out Marxist, this distinction annoys you. In any social contract we all have to relinquish our absolute freedoms to ensure we can function as a society, right?

Yes, public education and health do provide a framework for inclusion, but at what point do obligations arising from positive rights become the denial of a negative right, to say the president of a successful chain of arts and crafts stores? The devil is in the details. And that is not a pun, not for the plaintiffs. Their argument against having to help fund certain anti-contraceptives that may work after conception led Justice Kennedy in oral arguments to state "A Profit corporation could be forced in principle to pay for abortions. Your reasoning would permit it." Those supporting the defendants suggest vigorously that not complying with the so called contraception mandate of Obamacare is discrimination against women with a capital D, invoking another negative right - the right not to be discriminated against - rather than defending the necessity of state intervention in such a sensitive issue as contraception. To make matters even trickier, SCOTUS has never recognized a for-profit corporation's right to religious freedom, either under federal law or the Constitution. A private corporation under tight family control might define the very narrow limits of a ruling that favors the plaintiffs. This is a ruling that may strike down some rights and uphold others - whether positive or negative can and will be argued by all sides - and it is guaranteed to be one that is challenging and uncomfortable for all involved.

Posted by AllardK at July 2, 2014 5:19 PM
Comment #380399

These aren’t thorny cases at all. It is five old men throwing out 200 years of protection from state sponsered religion. A corporation is not a person. A corporation does not have a religion. Period. You talk about the owners, they have a choice to keep their businesses privately held and privately membered, just like the good ‘ol boy whites only golf courses down south. They can do what they want. Want more money, want to become a corporation? Then your company is responsible to follow the same laws as everyone else. You also want us to think this is tiny buisness people. Koch Industries, Ford Motors, Dell Computers all fall into the closely-held definition.

People on the right are so conditional in their morality it is absurd. There are only positive rights, and they only belong to people. The so-called “negative” is being told you can’t discriminate in a public environment despite “sincerely held beliefs” (not like you want us to believe that you have a right to not be discriminated against.) Well, too bad. There’s a reason to prevent religion infecting government. It goes bad for anyone not in your church. Defend your bible! Sure. Argue for it your imaginary supernatural dude all you want but don’t force me to conform to your rules and absolutely don’t legalize corporate exceptions from public law because of it.
These decisions mean a bible-toter could be told they can’t come into a wiccan store with that book. Boohoo, the little christian runs home and whines about being discriminated against. God forbid you want to put up mosque somewhere in lower Manhattan! Heresey! but a church is just fine. Use public funds for vouchers to a christian highschool? Fine. To an islamic school? That’s not a religion, that’s not what the money should go for. The second two are real cases by the way.

The SCOTUS 5 have become a group of self-righteous bible thumping theocrats who hate freedom for others not-them and need to retire yesterday. Religions don’t need protection ,the public needs protection from religions.

Posted by: Dave at July 1, 2014 5:47 PM
Comment #380404

Hmmm…a slight rewording would read…Religious people don’t need protection, the atheist public needs protection from religious people.

Posted by: Royal Flush at July 1, 2014 7:03 PM
Comment #380405

Just to repeat what Dave said:

A corporation is not capable of having religious beliefs.

A corporation is a legal fiction created to limit liabilities for owners, among other things. The point is to put legal distance between individuals and the business.

There is no ‘negative right’ involved here in the Hobby Lobby case. Female employees earn health insurance as part of their compensation for labor. They buy it through their company. The employer goes through a contractor, an insurer. How an employee spends their paycheck- in this case, an untaxed deduction- is up to the employee. There is no reason a corporation’s religious beliefs should have any say in the matter, if a corporation can even have religious beliefs in the first place. Good grief!

This decision is so openly discriminatory against women, it really is pretty shocking. The decision is ‘narrowly tailored’ to apply only to women, and ALL types of birth control women may use. Calling it narrow because, as those five Justices say, it “only affects women’s health coverage” is simply incredible. Women compose over half the population! What the heck is wrong with these guys?

Conservatives just don’t get it. They wage a War on Women- a sustained legislative and, in this example, judicial assault on women’s issues- and I don’t think they even understand why so many women are so upset with them. They just don’t get it.

Posted by: phx8 at July 1, 2014 7:12 PM
Comment #380406

What the libs don’t understand and refuse to consider is the “government mandate” to provide benefits that some find is a violation of their religious beliefs. Without the SC ruling the government would force them to violate their beliefs.

The SC considers individual rights supreme over government mandates.

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Posted by: YTE6UT at July 1, 2014 7:58 PM
Comment #380410

Hobby Lobby still provides contraceptives to their women employees phx8 it’s just the abortion inducing drugs they are against which comprises 4 out of the 24 or so required by ACA.

Posted by: Rich KAPitan at July 1, 2014 9:41 PM
Comment #380411

The SCOTUS decision affects all contraceptives for women. None of these drugs induce abortion. That is inaccurate.

Since when does your religious freedom require you to make the choice for someone else, as to whether or not they may use contraceptives as preventative health care. Some drugs, like the pill, are also used for other health issues, such as hormone replacement therapy. It is common. Your religious freedom depends on what someone else does with their body? Really?

Posted by: phx8 at July 1, 2014 9:55 PM
Comment #380412

“The SC considers individual rights supreme over government mandates.”

What individual rights are you talking about, Royal. The rights of a corporate “person?” In order to reach its decision in this case, the Court had to determine that a corporation had the rights normally attributed to natural persons under the Constitution.

In any case, the Court did not base its opinion on Constitutional law but on statutory law (Religious Freedom Restoration Act). That act was passed in response to the Employment Division vs. Smith case in which the Supreme Court (Scalia wrote the majority opinion) eviscerated the traditional Constitutional test of strict scrutiny for determining whether a generally applicable federal law unduly burdened a person’s religious beliefs. Ironically, the act was passed by a Democratic Congress and signed into law by Clinton in response to the Smith ruling. It restored the strict scrutiny test for religious issues.

This Court found, under the RFRA test, that while the government might have a compelling interest in assuring women have access to health care including contraceptives, it didn’t meet the second part of the test which requires that it do so in the least restrictive manner. The Court reasoned that the government could provide the same benefits for women employed by Hobby Lobby through alternatives such as the government has already made available for religious organizations. In other words, the government mandate is OK but if there are reasonable and practical alternatives to carrying out the mandate, it should pursue them rather than force Hobby Lobby to violate its sincerely held religious beliefs.

But for the RFRA, the Constitutional precedent of the Smith case would control and it is likely that the case would have gone the other way. This is from the Scalia opinion in Smith:
“… The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.”

In the Hobby Lobby case, the majority was fully aware of the cautionary language of Smith by going out of its way to say that the decision was controlled by the RFRA and narrowly limited to “closely held” corporations and contraceptives. Maybe. They opened the door. The limitation language of the opinion is not controlling precedent, the ruling on the facts are the important issue.

Posted by: Rich at July 1, 2014 10:20 PM
Comment #380413

Weather the scotus decision affects all contraceptives or not, Hobby Lobby was against the 4 that are abortion inducing drugs phx8 they cover by their H.C. ins. the every day B.C. contraceptives. For those take your bitching to the Catholics they are the ones against all types of contraceptives. Religious freedom does not make choices, if a person want’s to use B.C. or the abortion inducing drugs that’s their choice, but if the owner of a company does NOT want to cover either or on Religious grounds that’s their choice, a women still has the choice to NOT work for a Religious person.

Posted by: Rich KAPitan at July 1, 2014 10:29 PM
Comment #380414

Do you guys realize what you are arguing about? When it all boils down to it, it is who is going to pay for what someone else wants. That’s it. It’s even a third party that’s expected to pay, not the person using the service. Not the insurance company that’s handling the payments. It’s the third party business that’s expected to pay!

How can anyone be so selfish as to entertain this line of thought? What’s wrong with paying for it ourselves? Don’t you think a miriad of problems would go away if we just paid for it ourselves? Expecially something as trivial as birth control pills, something they give away on a regular basis!

Just look at how this arguement has come about. Someone gets up in front of congress and says she needs her birth control paid for. Those on the left start a war on women with the right. Government tells business they have to pay for someone elses health care, specific health care, ie. birth control. Those expected to pay for it refuse and it goes all the way to the supreme court! W-T-F!!!

All of that would be eliminated if people would just take some personal responsibility for their own choices.

If you ask me, this whole environment we live in is insanity on display.

Posted by: Weary Willie at July 1, 2014 10:53 PM
Comment #380417

No, none of those contraceptive drugs involve abortion in any form whatsoever. That is made-up. It is part of the problem with this decision, because religious “beliefs” are allowed to be used as a standard and imposed upon others, regardless of whether those beliefs are grounded in fact in the first place. This decision is about contraception, plain and simple.

You are correct, an owner of a company may choose whether to offer health care. If I recall, it is not required for companies with less than 50 people. The only requirement is those companies must let their employees know about the existence of federal health care web site.

This decision is not about one individual flesh and blood owner. It is about a corporation, and that is a very different thing. The Supreme Court is recognizing the corporation’s right to practice religion, because a corporation is a ‘person’ with many first amendment rights.

Posted by: phx8 at July 2, 2014 12:30 AM
Comment #380419

4 out of whatever ACA mandated phx8, the rest they had no problem with. H.L does offer H.C. coverage that provides B.C. meds.

Posted by: Rich KAPitan at July 2, 2014 1:00 AM
Comment #380424

The employer mandates reek as much of them are not based in law but in executive action. But the big question is why, in 2014, do we compel companies like Hobby Lobby to provide “rights” like birth control in the first place. The day my HR Director quits picking my insurance coverage for me and I get to choose what policy I want for myself is the day I’ve been waiting for and the day issues like Hobby Lobby disappear for good. Ending the employer provided insurance system should have been the goal of healthcare reform. We could debate whether to transfer the responsibility to the government or to the individual and the markets, but either are better than the mess we have with the ACA.

Posted by: George in SC at July 2, 2014 10:51 AM
Comment #380425

See I don’t think either of these cases would have been taken to the Supreme Court if it weren’t for agendas and activism. Both of these cases could have been solved locally. Hobby Lobby could have searched for a HC plan that didn’t have birth control and the Health care workers could have left the union—being that IS what a union IS. Would they have lost their jobs? That I don’t know. Does it mean more money—yes. But these issues could both be handled with a phone and not a Supreme Court panel.

Do the hospitals have the right to fire union members and replace them—always. The hospital enforces the payment as it stands now unlesssss it’s a ploy to get this issue before the Supreme Court. The hospital is keeping the Union as they usually don’t over the long term. It smells fishy.

Hobby Lobby could search around as they are supposed to do when choosing a Health Coverage plan for their workers, if one plan doesn’t fit in with their agenda they can choose another. Not all cover birth control, I’m sure. They might even be able to customize a plan with the provider that fits Hobby Lobby’s ‘religious’ beliefs.

My point is that there are alot of other ways to handle these two issues other than bringing it all the way up to The Supreme Court. It’s all about agendas and these are the mandates of an agenda. The agenda is ‘POOR ME’ and it just doesn’t pan out as victimization which is what the Supreme Court is there for—victims. These are not victims, neither of them a victim.

One didn’t look around for a better HC plan and the other didn’t distance themselves from the unions. BOO-HOO both are victims assuredly somewhere in their minds but it is their own damn fault they are in this pickle.

It’s like a dog that winds its leash around all the lawn furniture and then whines when it’s stuck. These two “stuck” themselves—again, and neither is a true victim 100%. Both are just lazy and that isn’t a victim is it? Is it?

Posted by: simpleheaded at July 2, 2014 11:17 AM
Comment #380428

Exactly George, When people provide for themselves then they can pick what they need not what someone else THINKS they need.

Posted by: Rich KAPitan at July 2, 2014 12:04 PM
Comment #380429

Simple the ACA required preventive health services and screenings be covered in all new health insurance plans without cost-sharing from the insured. The Health Resources and Services Administration expanded this to all FDA-approved methods of contraception, sterilization procedures, and counseling on August 1, 2011. Two days later they amended it to allow a very narrow religious exemption “at HRSA discretion.”

The Hobby Lobby case is about Administration’s mandate and not the ACA, and Hobby Lobby is just one several cases in the system from plaintiffs who didn’t get HRSA’s discretion. Belmont Abbey College is still out there.

Posted by: George in SC at July 2, 2014 12:55 PM
Comment #380430

Government needs to get out of the business of writing our contracts for us. It’s not the federal government’s job to write or rewrite our contracts for us. The federal government is there to enforce contracts between people, not write contracts and force people to live under them.

Considering the July 4th holiday (that’s Independence Day for those who don’t know) I have to wonder what happened to the values those people fought and died for back in 1776-. They certainly aren’t present in this type of heavy handed government control we’re experiencing now. The supreme court should start looking at what corporations are doing now and compare it to what corporations were doing in 1776. They should look at what government is doing now and compare it to what government was doing in 1776. Many obfuscate by saying times have changed, but have they really? Technology has but isn’t government and corporations actually doing the same thing they did in 1776?

Posted by: Weary Willie at July 2, 2014 1:02 PM
Comment #380478

phx8 said

Since when does your religious freedom require you to make the choice for someone else, as to whether or not they may use contraceptives as preventative health care.”

When I am the owner of the company and choose to run it according to my beliefs. I can choose not to have it included in the health plan I offer. I am not stopping you from deciding to use birth control. I just won’t subsidize it. You have the freedom to choose not to work for me.

Posted by: dbs at July 3, 2014 8:17 AM
Comment #380480

The Democrats are out of control in some areas. I do see the need for the cases presented, don’t get me wrong, but some of this is marginally any form of “victimization”, in terms of these being severe “wrongs”.
A; Contraception (including the morning after pill) should not, and in some cases probably is not (this so remains to be seen as ‘chincey’ as HC plans actually are, they do pay for little), entirely included in all HC plans. It is a congressional indescretion and oversight indeed and probably needed to be addressed.
B; (the other case)”Being-in” with Unions harms your rapore and reputation with management, especially in such a close knit environment as a HC facility. This smacks of the contrived being that usually HC facilities (incl. hospitals) get rid of unions near immediately as they always have the power to remove them through simple rejection of following through on their appeals. They can fire at any time, this does not leave them exempt from this volley. Can being in league with a union get you laid-off or fired? Yes it can and usually does. The employer has alot more sway than one usually thinks possible in these cases as the media usually presents it. The media projects that the employer is powerless to do anything, which is absolutely never the case. Either the employer (and management) engages in the trial of a union or rejects it out and out. Strikes usually result in lay-offs and again separates you from your rapore and obvious reputation with management and higher-ups and thus so can get you fired. A union almost never “takes” in a hospital setting—so it appears a little fishy as to why it did in this case prior to the complaint.

Did the Dems go a little far, well being as out of date as they can be, yes they did—and thus so it was addressed.

Posted by: simpleheaded at July 3, 2014 10:08 AM
Comment #380586
When I am the owner of the company and choose to run it according to my beliefs. I can choose not to have it included in the health plan I offer. I am not stopping you from deciding to use birth control. I just won’t subsidize it. You have the freedom to choose not to work for me

Firstly, corporate health benefits are compensation, not subsidies. Employees work to earn them; they are not handed out because the company feels charitable.

Secondly, when one exercise the freedom to exclude contraception from a corporate health benefit, the government shouldn’t be forced to qualify one for a tax subsidy that is only offered to companies that compensate their employees with “comprehensive preventative health care”.

Posted by: Warren Porter at July 6, 2014 10:16 PM
Comment #380632

Warren are you calling an excise tax a subsidy? Hobby Lobby was facing a $100/day per employee excise tax under section 4980D of the Internal Revenue Code because the plan was non-compliant.


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Comment #380785

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